As I suggested at the beginning of this series, I think that Trump v. Slaughter has not received the attention it deserves, because of the furor that resulted from the not unexpected, but societally dangerous, birthright citizenship case, Trump v. Barbara, published by the Supreme Court a day later. The press has not much covered Slaughter, so the public is generally unaware of the controversy. Even if there had been wider discussion of it, the public would quickly have become bored, given their notoriously short attention span and the conceptually sophisticated nature of the issue. But Slaughter is a potentially revolutionary case, at least if its constitutional holding is not overturned at the next opportunity by a Supreme Court packed by and with Democrats.
The majority in Slaughter focuses its lengthy and scholarly discussion, authored by Chief Justice John Roberts, on the narrow constitutional issue of the President’s power, as chief executive, to remove commissioners of bureaucratic agencies at will, even if Congress has sought to limit this power in a declared effort to make the agencies independent of the executive. The Chief Justice, speaking for a 6-3 majority, comes down emphatically on the President’s side. While that opinion goes no further than it must to make its point, Justice Neil Gorsuch employs the privilege enjoyed by concurring opinions to invite further exploration of the full scope of what the Court has wrought. That opinion, although at times appearing a bit jagged in its progression of the argument, deserves to be closely read by every member of Congress and every federal judge.
Slaughter, the End of the Administrative State, and the Return to the Constitution’s Normal Order of Three Separate but Interrelated Branches
Gorsuch declares that Slaughter spells the end of the administrative state, at least as currently structured. He attributes this result directly to Slaughter eviscerating the holding of Humphrey’s Executor and restoring the President’s power to fire at will almost all officers in the federal government who perform an executive function as part of their duties. Administrative agencies, broadly speaking, are of two types, “executive agencies,” that is, those within the executive branch and often within a Cabinet department (IRS, FDA, FAA), and those which are “independent agencies” (SEC, FTC, FCC). Both types are technically within the executive branch, and both types may be given broad authority by Congress to make regulations which carry the force of law and to adjudicate matters within their jurisdiction by administrative processes subject ultimately to some degree of federal court review. The difference is that the President has the undisputed right to fire the officers of executive agencies (other than a limited exception made for minor officers in Morrison v. Olson), but for nearly a century, until Slaughter, Congress could restrict the President’s removal power as to officers of agencies which Congress intends to be independent of the President. For the latter class of officers, Congress has usually limited the removal to considerations of “good cause.” That restriction on the President’s power was the controversial constitutional heritage of Humphrey’s Executor. Slaughter removes those limits and makes officers of all agencies subject to the President’s power to fire at will.
Gorsuch welcomes this elimination of a “‘headless “fourth branch” of the Government,’…one that did ‘violence to the basic theory of the American Constitution.’” Under the Constitution, there is no branch of the federal government which simultaneously, makes, enforces, and adjudicates, broad public policies and does all of that while unelected and not subject to effective accountability. The justice lauds the Court for taking “a notable step back toward the Constitution.” As an aside, this conclusion is the more striking, when one realizes that Justice Gorsuch is the son of Anne Gorsuch Burford, who was the head of the Environmental Protection Agency from 1981-1983, appointed by President Ronald Reagan. As fate would have it, she was at the center of the dispute over EPA documents that ultimately led to the case of Morrison v. Olson, in which the Court created what remains today as another narrow and constitutionally wounded exception to the President’s removal power.
The Progressives’ Attacks on the Constitutional Order
Gorsuch begins his discussion with a brief history of the constitutionalizing of the modern bureaucratic state. He lays the blame at the feet of the early-20th century Progressives, a tale my constitutional law students know well from my lecture on the topic. Indeed, Gorsuch goes easier on them than I would. Among the movement’s influential figures were, from earliest, Frank Goodnow, Herbert Croly, Walter Lippmann, James Landis, and Rexford Tugwell, some of whom Gorsuch mentions, and the last two of which were from a generation after the others. But casting the largest shadow was Woodrow Wilson, the eldest and most successful among the group, who was able to use his political power to realize the Progressive academic theory of the administrative state.
These Progressives were not all focused on the same aspects of the problem they perceived in the structure and operation of American government. However, they shared certain characteristics. All were academics in outlook, although Croly and Lippmann were writers and public intellectuals who did not hold formal academic posts, and some (Wilson, Landis, and Tugwell) also had careers in politics or public administration. They shared, in varying degrees, a deep skepticism of the constitutional structure of separation of powers. It is not too strong to say that for some, they were contemptuous of the American Constitution and the participation of the public in the affairs of government through voting. Gorsuch points out that then-professor and future-President Woodrow Wilson asserted in various writings that the American “commitment to ‘popular sovereignty’ entrusted too much to a ‘selfish, ignorant, timid, stubborn, or foolish’ people”; that “letting the public anywhere near the new bureaucracies would amount to letting ‘a rustic handl[e] delicate machinery”; and that “‘[U]niversal suffrage is at the foundation of every evil in this country.” Having been for many years a student and then an academic, I am no stranger to hearing the type of sentiment that confidently holds, “The masses are asses.”
Wilson admired the Prussian bureaucracy with its combination of the three powers as a model of competency and efficiency to be admired and copied. He was not alone. Landis, quoted by Gorsuch, contributed his judgment that “our ‘simple tripartite form of government’ was ‘inadequate…to deal with modern problems” and that the “project of ‘distinguish[ing]… between’ legislative, executive, and judicial powers had to ‘g[i]ve way…to the exigencies of governance.’” Landis went further. For efficient public administration and governance, whichever body or person was placed in charge of a particular aspect of governance must have “‘whatever power might be required to achieve the desired result.’” If Plato intended his Republic as a serious proposition rather than a warning, he must have been smiling in his grave listening to the Progressives.
Plato’s Republic as a How-to Manual for Progressivism
Gorsuch stops short in his indictment of the Progressives. I am happy to proceed. At least Plato’s apparent advocacy for eugenics in Republic was missing from the Progressive vision. But hold on, that was indeed part of the dogma of many Progressives, although the above-mentioned individuals, with the exception of Croly and Wilson, were not clearly influenced by eugenics in their writings and actions. Like Plato, Croly believed that there were those who were simply unfit to further the progress of society. Like Plato, but without committing himself to Plato’s enigmatic “marriage number,” Croly advocated state control of marriage and reproduction to prevent crime and insanity and to promote propagation of those fit to participate in the new society. And it was Wilson, after all, who, as governor of New Jersey, signed a bill into law which provided for sterilization of such undesirables, a program later upheld by the Supreme Court in the notorious case of Buck v. Bell, an opinion written by the Progressive Justice Oliver Wendell Holmes, Jr.
Whatever their tangential individual ideological nuances, Progressives were emphatically Platonic in their fervent belief in government by elites. Who might those elites be? Experts trained in public administration, academics such as themselves, drawn from the talent pool at elite law schools and universities, especially new departments of public administration. Once again, the model was the Prussian—or German—university, considered to be one of the best, if not the best, system in the world at the time. Late-19th and early-20th century American would-be academics flocked to German universities to study. Johns Hopkins University, founded in 1876, was the first American university to be modeled after German universities. It is not surprising, then, that Woodrow Wilson earned his doctorate there, learning from professors each of whom had studied in Germany. Leading American law schools, too, reformed their pedagogy. Starting with Harvard under Dean Christopher Columbus Langdell, they granted the degree of juris doctor to their graduates, based on the German model.
This new class of technocrats must be able to govern efficiently, with broad authority and removed from political control. They would govern dispassionately, the Progressive assured their readers and each other, a class of Platonic Guardians controlled by reason, not passion, who would “follow the science,” to take a phrase championed by more recent versions of such progressive elites of experts. They would rise above the selfishness of the masses and not let outdated ways of thinking about a person as a rights-bearing individual cloud their judgment. As Wilson wrote, “[A] lot of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere sentiment and pleasing speculation has been put forward as fundamental principle.” That Declaration of Independence was just so Eighteenth Century!
The Progressive Attack on the “Newtonian” Structure of the Constitution
Of course, the Constitution was no less anachronistic as a plan of government than the Declaration was as a statement of the State’s political legitimacy and the individual’s relation to the State. The separation of powers among the branches of the federal government, the division of governing authority between two sovereignties—the states and the federal government—known as “federalism,” and even the emphasis on the protection of individual rights against all government has been described as “Newtonian,” that is, as a machine of distinct and interacting parts, carefully calibrated to accomplish only the limited objectives for which government was necessary. Madison’s writings in The Federalist, especially No. 51, are the operating manual of that machine. The Progressives agreed and despised the system for it. It was this structure which, to them, impeded progress—a movement toward greater government control to organize the masses behind a technocratic governing elite overseen by a charismatic leader—and which, they charged, was wholly unsuited to the complexities of a modern society.
The Declaration of Independence also incorporated the American Enlightenment understanding of the State as merely a tool to guard the life, liberty, and property of its citizens with as light a hand as needed for the task. Government arises out of the fallen nature of man and, though necessary for protecting personal security and rights in property, must be watched closely and with wariness. To the Progressives, this was a fundamental misconception of the origin, legitimacy, and purpose of the State. The State was not a rickety machine created by the people through their consent, but an inevitable feature of human existence in civilization. Indeed, their ideological roots in the dialectical teleology of the German Philosopher Georg W. F. Hegel meant that the conception of the State as premised in the Declaration and the Constitution was merely one step in the progress to their own, “ultimate” form. That higher form was the “organic” State, one which had an existence of its own and which, in the end, was grander and was endowed with more legitimacy and rights than any individual member.
This deification of the State meant that individuals must get meaning for existence and must be judged in their actions not for their individual pursuit of happiness, but for how they served the State. Moreover, each person and association would have an ordered place in this well-managed structure, all directed by the head (the governing intelligentsia) and supported by the brawny body of the fit masses. Within that body, the vital organs were the expert administrators who directly supervised the economic, social, and personal lives of the masses. Once again, the resemblance of this social organization to Plato’s totalitarian Republic is unmistakable. Like that ancient work, the Progressives touted this model as one of perfect justice achieved by carefully controlling all aspects of life in a stable and balanced society.
Progressivism and the Birth of the Modern Administrative State during the Wilson Presidency
It is hardly surprising, then, that many of the agencies given broad grants of rule-making authority and combining within themselves the three types of powers under the Constitution were created during Wilson’s administration. This included the Department of Labor and the National Park Service within the Cabinet and subject to the President’s full control, and the Federal Reserve, the Federal Trade Commission, and the U.S. Tariff Commission as “independent” agencies protected from at-will removal by the President. Moreover, the reach of the Internal Revenue Service was greatly expanded by the adoption of the 16th Amendment, which authorized the federal income tax, initially advertised as targeting only a few hundred “super-rich” Americans but soon to cast its net much wider. In addition, many of the agencies established during FDR’s New Deal had their origins in the Wilson administration’s “war socialism” of 1917 to 1920, including the National Recovery Administration, the Reconstruction Finance Corporation, and the Securities and Exchange Commission.
The Intellectual Cousins of Progressivism Take Hold Abroad: Fascism, National Socialism, Communism (International Socialism)
Other collectivist models took form abroad, contemporaneously with Progressivism, namely fascism and national and international socialism. All were rooted in the same philosophical ground. When Mussolini declared in 1925, “Everything within the State, nothing outside the State, nothing against the State,” he could have delivered that speech to the cheers of a convention of Wilsonian Progressives as much as he did to the Italian Parliament. His program of “corporatism,” a collaborative association among big business and big labor under the direction of big government, became the policy of Franklin Roosevelt’s New Deal. If possible, religious and social institutions and, ultimately, the family structure itself, must be brought within this program, as they were the vital systems which tied the body of the State together and kept it physically functioning.
All these systems promised a changed relationship between the government and the people, a new social, economic, and political order. All envisioned strong centralized control by top-down government. All were successful as a fundamental matter in realizing that promise, but they much differed in the extent to which they met the particular claims of their ideologies. In the next essay, I will address Justice Gorsuch’s answers to the questions he raises about the Slaughter Court’s return to constitutional principles.
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