The Supreme Court’s 6–3 ruling to undo the 90-year-old Humphrey’s Executor case has undermined the purpose of independent commissions. The court ruled President Trump may fire Senate approved members of the Federal Trade Commission before their terms expire. Humphrey’s Executor, a 1935 ruling, and related statutes, had allowed Congress to create independent agencies to mitigate political interference.
Chief Justice John Roberts wrote that agencies are not really independent if they exercise executive power – “subordinates who exercise the President’s power are subject to removal by him.” He added that Congress and the courts cannot “saddle” a president “with those with whom he cannot work,” which, of course, was the purpose of independent agencies.
This decision aligns with the court’s other recent trend upholding the Federalist Society favored “unitary executive theory” which holds presidents should have sole authority over the executive branch.
Interestingly, Justice Roberts somehow contorted his logic to allow one exception – appointments to the Federal Reserve Board Governors may not be fired at a president’s whim. “The Founders knew from experience the calamities that could arise from even the ‘suspicion’ of political manipulation of monetary policy,” he wrote concluding that the Fed should remain independent. But not others?
Mississippi, at both the state and local levels, has a long history of independent boards and commissions. In many cases appointive authority and appointee terms are distributed to mitigate political interference.
So, under the Supreme Court’s new “unitary executive theory,” can a Mississippi governor, the state’s chief executive, fire an appointee to an independent board or commission at-will?
Only in some cases. A governor may remove one of his appointees unless restricted by statute or constitution. One example – an appointee approved with the consent of the Senate would also have to have Senate approval to be fired. Even then there could be administrative or statutory rules to prevent that.
In other words, our Legislature can restrict a governor’s authority to fire board and commission members. Congress also had that authority until this latest Supreme Court ruling.
A local example of a well-functioning independent commission is Jackson’s One Cent Sales Tax Commission. It was established to ensure local tax revenue is spent according to a master plan for infrastructure improvements without political interference. The Governor, Lt. Governor, and Speaker have appointments, and Jackson’s Mayor has three with Council approval. Four more come from recommendations made by the Chamber.
Not having such independent commissions at the federal level risks political chaos. Imagine a president controlling the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, Federal Election Commission, etc.
Oh boy, that’s happening already. But hopefully it won't in Mississippi.
“Woe to those who are wise in their own eyes” – Isaiah 5:21.
Bill Crawford is an author and syndicated columnist from Jackson.
