In today's decision in Trump v. Slaughter, the Supreme Court ruled that laws protecting the heads of "independent" executive agencies from firing are unconstitutional, because they infringe on the president's constitutional removal authority. In my last post, I noted that the exact scope of this principle is unclear, given the exception the Court carved out for members of the Federal Reserve Board in Trump v. Cook, also issued today. But let's assume that, after Slaughter, protection against removal really is unconstitutional for the heads of all or nearly all previously "independent" federal agencies. If so, I would suggest that that renders the very existence of at least some of these agencies subject to legal challenge on the grounds that the removal protection provisions are not "severable" from the rest.
In his concurring opinion in Slaughter, Justice Neil Gorsuch rightly highlights that Congress might not have created many of the independent agencies in the first place (or at least not given them as much power) if they had known their leadership would be subject to the complete control of the president:
Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today's decision, the President can effectively exercise all those powers too.
It's a development that raises important questions, not least these: Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?
Gorsuch goes on to argue that this problem necessitates stronger judicial enforcement of constitutional nondelegation rules and the related "major questions" doctrine. I agree that these two doctrines are important and valuable constraints on executive power, and that courts should enforce them more aggressively. But the end of agency head protection against removal doesn't by itself trigger stronger judicial review under these doctrines. Whether a claimed delegation runs afoul of nondelegation and major questions constraints depends on the scope and nature of the power delegated, not on whether it is granted to an agency or to the president, and not on the extent to which the agency heads are insulated from removal.
By contrast, the invalidation of removal protection does matter under the Supreme Court's "severability" precedent, which addresses the question of what to in situations where one part of a law has been invalidated as unconstitutional, but others have not. In such cases, does the rest of the law fall too, or does it remain in place.
The relevant precedent here is far from a model of clarity. But, as a general rule, it turns on how significant the invalidated provision is to the overall statutory scheme, and whether Congress would have enacted the law without the unconstitutional element. Much of that precedent is summarized in an amicus brief I filed along with a cross-ideological group of other legal scholars in California v. Texas (2021), the Obamacare severability case.
The right answer will likely vary from agency to agency. But I suspect that Justice Gorsuch is right to think that at least some of these agencies would not have been created in their current form if not for the expectation that their leaders would be insulated from removal by the White House. If so, now that these protections against removal have been invalidated, their existence can be challenged as "inseverable" from the unconstitutional anti-removal provision.
If the ensuing litigation results in the invalidation of the agencies, Congress could, of course, try to recreate them with new legislation. But the new agencies might not be granted as much power as their predecessors.
I will not here attempt to canvas the relevant agencies or the gauge the prospects of inseverability lawsuits challenging each one. As already noted, the legal viability of a challenge may vary from case to case. In addition, courts may be reluctant to invalidate some agencies because of accumulated reliance interests or because of their economic and political significance. But I urge public interest groups, industries, consumers, and others affected by these agencies' regulatory powers to give serious consideration to challenging them on this basis.
NOTE: For those keeping score, the position I tentatively advocate here is totally consistent with what I advocated in the Obamacare severability litigation referenced above. In various writings and amicus briefs during the course of that litigation, I argued that what was left of the Obamacare "individual mandate" after Congress largely neutered it in 2017 (by abolishing the penalty for noncompliance) was too insignificant to render it inseverable from the rest of the Affordable Care Act. By contrast, protection of agency heads from removal is a far more important part of the statutes establishing at least some of the regulatory agencies to which it applied until ruled unconstitutional in Slaughter.
