The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike the laws creating the FTC, NRLB, FERC or others, which do), they are legally removable at will by the president, placing the agency under executive control.
The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that.
Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body
He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation.
On the removal side, there's this:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years.
That's all the Constitution says.
Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board.
So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.
At this point I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant. The broader issue here is a massive, completely unchecked, power grab that is -deeply- troubling. Our checks and balances, are failing us and this is another sign of their deterioration.
That’s a good analysis. But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation. The constitution doesn’t even talk about an “executive branch.” It vests the executive power in a single office—the President. (“The executive Power shall be vested in a President of the United States of America”).
Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
Ironically enough, the administration is attempting to fire Lisa Cook from the Federal Reserve Board of Governors, despite the very clear existence of a 'for cause' clause, and has taken the matter to the Supreme court where it will be heard next month.
Andrew Johnson was impeached for removing Senate-approved officers. The trial failed. It's been the precedent since then that the President can terminate any and all presidentially-appointed officers, at any time, and for any reason. Sure, the SCOTUS has vascillated on this, but the courts now are being more clear now that this really is the case.
It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'.
The way I read the US constitution, every federal government agency is necessarily contained in one of the three branches, since the entire federal government is made of and only of those three branches. FCC is not in the legislative branch -- constitution is clear that that is only the congress, it is not judicial -- the constitution is clear that those are the courts. So it is in the executive, which makes sense since its job is to enforce law -- the job of the executive branch. The executive branch reports directly to and is directly answerable to the head of the executive -- the president.
The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.
Whelp. Here’s more sanewashing of this admin. This headline is false and helping to ameliorate their crimes.
He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak
The number of software engineers in this thread who think they are legal scholars is a sight to behold. It reminds me of all the bad legal advice on Stack Overflow, Quora, and Leddit.
I hate the administrative state's current structure just enough that I don't care which administration or court dismantles it.
From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government.
Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself.
I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.
I'm an electrical engineer. As someone that can release a product that works from day one, do I get to opine on this topic?
(Okay, I have an amateur radio license and have designed devices to be compliant with 47 CFR part 15, so theoretically I'm a little more versed in FCC operations, but this is all high-school level civics that seems to be actively unlearned by anyone with an MFA or any degree in journalism.)
Constitutionally, federal agencies have to be authorized by the legislative branch and executed by the executive branch. Federal agencies not only can't be truly independent, they're beholden to two separate branches of government, either of which can reduce their reach, and the judicial branch has oversight to ensure what they do is actually authorized.
They're not likely to rule any differently in this case, and except for actions that would otherwise be unconstitutional, none of these rulings prevent congress from creating regulations or authorizations allowing federal agencies to performing their respective overturned actions, it just prevents them from acting until congress has authorized them to do so.
Also, I'm convinced that the last case involved a violation of the third amendment, but no one seems to care about the third amendment.
Cool! Assuming we don't go full-on 1930s-Germany, and Trump actually leaves office, then the next liberal president can have the FCC remove Fox News' broadcast license.
If Humphrey's Executor goes down, "independent" becomes effectively unconstitutional under the current SCOTUS. It's awkward to have an unconstitutional goal hard wired into an agency's mission, and could be used against it in court. It's a bit of a presumption that Trump v Slaughter will turn out this way, but given the tone of the oral arguments, not a lot.
Toadies doing the bidding of their master are the worst kind of boot-lickers because they mistakenly think they won't be crushed when they become inconvenient.
Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause
Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.
The new deal is, like, one of three reason that the US isn't a complete shithole. The new deal is responsible for so, so much of the prosperity of the golden age of America that it cannot be understated.
CGMthrowaway|2 months ago
The FCC has often been called an independent agency. But this may be a mistaken assumption. The 1935 Supreme Court ruling in Humphrey’s Executor held that when Congress included for-cause language, the president could not fire commissioners for simple policy disagreements. The FCC charter does not have that.
Under this interpretation, the FCC is considered part of the executive branch and aligned with the president's policy objectives rather than operating as an autonomous body
Animats|2 months ago
He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation.
On the removal side, there's this:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years.
That's all the Constitution says.
Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board.
So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.
jmward01|2 months ago
rayiner|2 months ago
Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
anigbrowl|2 months ago
cryptonector|2 months ago
Forgeties79|2 months ago
calvinmorrison|2 months ago
trothamel|2 months ago
https://thehill.com/regulation/court-battles/5636278-trump-s...
It appears to be an open question as to if independent agencies are allowed under the constitution. The most recent round of articles seem to be like that one in The Hill, which indicate the answer is likely to be 'no'.
This seems to be in response to that.
dmitrygr|2 months ago
The congress cannot legislate a fourth branch even if they wanted to. They'd need a constitutional amendment for that. We have thus, by a simple application of reading and logic concluded that this is precisely as is expected given the US constitution.
neom|2 months ago
unknown|2 months ago
[deleted]
lovich|2 months ago
He directly said it was not an independent agency, he didn’t “suggest” it. But we’re in the era where organizations like the BBC have people resign because the King doesn’t like their version of reality so I guess I better brush up on my NewSpeak
president_zippy|2 months ago
miltonlost|2 months ago
yieldcrv|2 months ago
From my perspective the Federal Government subjugated all the states by magically noticing that all commerce had become interstate commerce by the 1930s. Its a parallel country overlaying the union of states, instead of federalism - which has a definition divergent of what "Federal" means to us in reference to the national government.
Harmonizing that all back under the President is a step, right before going after the Interstate Commerce clause itself.
I don't care how disruptive that is, its Congress' job. If Congress can't form consensus the country is done, obviously. Otherwise, surface candidates that can actually bridge consensus, which is always an option. Everyone's last minute civil rights goals aren't going to happen, duh! So drop that just like all administrations from the past 250 years did consecutively, and pass relevant things that keep the lights on.
unknown|2 months ago
[deleted]
dlcarrier|2 months ago
(Okay, I have an amateur radio license and have designed devices to be compliant with 47 CFR part 15, so theoretically I'm a little more versed in FCC operations, but this is all high-school level civics that seems to be actively unlearned by anyone with an MFA or any degree in journalism.)
Constitutionally, federal agencies have to be authorized by the legislative branch and executed by the executive branch. Federal agencies not only can't be truly independent, they're beholden to two separate branches of government, either of which can reduce their reach, and the judicial branch has oversight to ensure what they do is actually authorized.
Sure, the judicial branch has historically played extremely fast and loose with the constitution, e.g. by considering authority over "interstate commerce" to cover feeding your livestock with crops you grew (https://en.wikipedia.org/wiki/Wickard_v._Filburn), so plenty of blatantly unconstitutional rules have stood for extended periods of time, especially those growing the power of the executive branch, but more recently, the courts have been ruling to limit the power of the executive branch, for example preventing executive organizations from enforcing fines without authority (https://en.wikipedia.org/wiki/AMG_Capital_Management,_LLC_v....) operating without executive oversight (https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...) and making up their own rules (https://en.wikipedia.org/wiki/Sackett_v._Environmental_Prote... and https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...).
They're not likely to rule any differently in this case, and except for actions that would otherwise be unconstitutional, none of these rulings prevent congress from creating regulations or authorizations allowing federal agencies to performing their respective overturned actions, it just prevents them from acting until congress has authorized them to do so.
Also, I'm convinced that the last case involved a violation of the third amendment, but no one seems to care about the third amendment.
zoklet-enjoyer|2 months ago
0xbadcafebee|2 months ago
delichon|2 months ago
alsetmusic|2 months ago
nine_zeros|2 months ago
yieldcrv|2 months ago
Sorry Justice Sonia Sotomayer, the country is only in this quagmire because of the New Deal interpretation of the interstate commerce clause
Most of the New Deal was struck down in the 1930s, that should be cause to question the constitutionality of everything that remains. From what I can tell, everything that remains just was hard to get standing to challenge within the courts. Now we have someone who can get standing very easily, going after it, right to the jugular.
array_key_first|2 months ago