FCC chair suggests agency isn't independent, word cut from mission statement

[1]https://en.wikipedia.org/wiki/Myers_v._United_States

That is true of all branches of the government, not just the executive.

By “at the moment,” you mean “in the 1930s when the Supreme Court bent over backward to uphold FDD’s administrative state, right?” When they effectively overruled the Supreme Court’s 1926 decision in Myers v. United States, right?

Because the text of the constitution says this: “The executive Power shall be vested in a President of the United States of America.” Show me how you get from that to executive agencies exercising executive power independent of the President.

Judicial review of executive actions is stronger and more frequent than its ever been. Congressional power of the purse is secure. And the REINS Act (not yet passed) would require Congress to approve major agency rules before they take effect

It has little to do with political parties even though originalist thought is more aligned with conservative social and political thinking and pragmatists are more aligned with progressive thinking.

The shame of this is, it is in defiance of the design of the Founders, and will take a LONG time to correct, if we don't descent into authoritarianism before it is corrected.

Actually, there are at least three early examples of independent agencies, though note that until the modern administrative state emerged in the late 19th century the Federal government was never so hierarchically organized as to admit to an "agency" as we understand that term today.

First was the 1790 sinking fund, a nominally executive committee created by Congress to pay down the national debt, which could override the President's preference regarding payments. Second was the office of the comptroller, which was strongly shielded from executive control for fear of a corrupt president, and which (IIRC) was the subject of vigorous Congressional debates. These two examples are possibly at least partly why in a recent emergency docket decision there's dicta exclaiming that Federal Reserve independence was not and in decisions to come would not be implicated by what SCOTUS (impliedly) has coming down the pipeline. Both of these examples would later be construed as examples of "quasi-legislative" executive agencies, rooted in Congress' power of the purse. (Though, it's likely SCOTUS will lean more heavily on powers and precedent regarding banking.)

Third was the de facto independence of federal district attorneys. Until 1820 they were answerable to nobody, except in theory to Congress by impeachment, until Congress nominally placed them under the Treasury Secretary in 1820. This would be an original example of "quasi-judicial" executive officers, which one might naturally apply to modern administrative and immigration law courts.

There are more, albeit less clear-cut practices, including the situation in Marbury v Madison. Also note that the removal power is distinct from the broader contemporary unitary executive theory, which aims to place even more plenary power in the presidency than merely removal (which is just the hook to prove the larger theory by logical inference which otherwise has little, if any, historical precedent or positive textual evidence), and therein lies much more complexity, which is why the whole debate has been muddled from the very beginning of the US--the Founders and early Congresses discussed it explicitly, but largely showing there was in fact no consensus, except what they de facto established in practice (e.g. many of those who argued for a unitary executive-like theory in fact joined in the establishment of and acquiesced to the practices of a partially independent comptroller). I think the black letter law annunciated by Humphrey's Executor, that Congress can in principle shield quasi-legislative and quasi-judicial agencies from the president, is spot on when trying to square constitutional text, constitutional theory, historical debates, and historical practice. Though, there's a good argument that over time the courts have not been vigilant enough in cabining Humphrey's Executor, e.g. by more clearly and strictly articulating what qualifies as quasi-legislative and quasi-judicial functions, which is presumably why Robert's recently suggested, as an olive branch offering, that Humphrey's Executive as applied today does not hew closely to the legal principle it expounded (and presumably, were Roberts to continue, that it applied it's own principle wrongly). Personally, I wouldn't mind a forthcoming SCOTUS opinion that effectively expands removal powers by way of affirming and applying Humphrey's Executor legal rule, even if it nominally reversed it's application with the same set of facts.

There are scores of law review articles discussing the subject going back well over a century, but a really good one written not long after the Reagan-era debates is "The President and the Administration" by none other than Cass Sunstein and (apropos HN) Lawrence Lessig, https://chicagounbound.uchicago.edu/journal_articles/7779/

That article is the most honest review of the debate I've read; perhaps too honest and earnest because they really pull their punches. (Perhaps that's partly because of Lessig's background in legal history and his reluctance to make absolute declarations about historical matters? EDIT: I confused Lessig with Eben Moglen at the FSF) It gives significant attention to Myers, FWIW, including agreeing (IIRC) that it was correctly decided.

And if you haven't read this already, here's the contemporaneous strong-man argument for independent agencies, Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1 (2020), https://scholarship.law.nd.edu/ndlr/vol96/iss1/1

Article I courts arguably exercise judicial power independently of the Article III judges.

But if you want to go down the separation of powers route, you'll need to break up many federal agencies to separate their legislative and judicial functions from their executive duties. That was the basis of Humphreys Excecutor, which btw was decided by largely the same court as in Myers. Humphreys (and later in Morrison v Olson) recognized that federal agencies can in practice perform "quasi-legislative" and "quasi-judicial" functions, not just law enforcement duties. There is for example a body of law governing rulemaking by agencies. Even CJ Roberts observed during the oral arguments of Trump v Slaughter that an agency's functions might span all three categories of government power -- executive, legislative, judicial -- to various degrees.

If separation of powers is to prevent Congress from wielding executive power, it should likewise preclude a president from laying claim to the other categories of power.

Which have been packed by Federalist ideologues for years. The "court" (as if its some one whole) isn't some nueatral 3rd party arbiter of the "law".

In the late 19th and early 20th century, folks like Woodrow Wilson came up with this idea of the administrative state run by independent expert civil servants: https://teachingamericanhistory.org/document/the-study-of-ad.... The concept arose from Wilson’s hatred of democracy and immigration:

> The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes. A truth must become not only plain but also commonplace before it will be seen by the people who go to their work very early in the morning; and not to act upon it must involve great and pinching inconveniences before these same people will make up their minds to act upon it.

> And where is this unphilosophical bulk of mankind more multifarious in its composition than in the United States? To know the public mind of this country, one must know the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes. In order to get a footing for new doctrine, one must influence minds cast in every mold of race, minds inheriting every bias of environment, warped by the histories of a score of different nations, warmed or chilled, closed or expanded by almost every climate of the globe.

The idea of “independent agencies” staffed by neutral civil servants arises directly from this skepticism of democracy and voters.

In this case, Trump is easily bought and isn't very concerned with governing himself (compared to playing golf or designing ballrooms). With this in mind, even people outside the executive branch, or even the USA are benefiting.

This is very obviously the design of our government.

"[The President] shall take Care that the Laws be faithfully executed"

U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle.

[1] https://apnews.com/article/trump-supreme-court-copyright-off...

Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.

Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.

And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.

And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.

And why should you care about this?

Because every 4 years you can vote for a different president.

You can't vote for the head of FCC.

All the laws give limitations on what the executive is allowed to do. So this idea that its limiting the abilities of the executive and that's not allowable seems meaningless to me, that's what the laws are for. The laws are there to define how the executive is to act. The executive is then supposed to faithfully do those actions.

If the President has total control over the executive branch, why can't he just go tell the people in the executive branch to go do illegal things all the time? Is he just no longer bound to the law at all? If Congress says the executive needs to make a food stamp program, should he not be required to actually make one? If the Congress says dumping hazardous waste should be limited, should he not be required to actually regulate dumping? Wouldn't he fail at faithfully executing the laws?

I don’t think you’ve thought through your point or you are desperately struggling to get through the cognitive dissonance. Nothing has indicated that SCOTUS will defang Trump. Their history so far has been heads Trump wins, tails Trumps enemy loses.

Like they ruled Biden couldn’t cancel student loans but then bend over backward to let Trump do as he pleases.

You’re getting a king, not a return of power to the states

what stands out to me is that this President is written about favorable in our history books despite that plan being far more egregious and unprecedented at the time

in any case, the court shifted its tune as a compromise not as a matter of actual opinion of the constitution

and like I previously wrote, everything else was just hard to challenge at all, unless you are a President suddenly trying to fire some folks

the US advancing from a backwater to an economic powerhouse is great! I wonder if we can do it another way without leaning on the Interstate Commerce clause to regulate all facets of American life