After Trump v Slaughter the Answer Is Court Reform

Judicial Reform, Not Agency Independence, Will Protect the Working Class

Credit: iStock/Fintan Trimble

By Nidhi Hegde, Mike Pierce, and Elizabeth Wilkins

(Editor’s Note: This article is a collaboration between Economic Liberties, the Roosevelt Institute, and Protect Borrowers. After you’re done reading, we highly encourage you to check out and follow their work.)

The Supreme Court has once again reaffirmed that it is a political institution. Yesterday, the Court overturned Humphrey’s Executor v. United States, a decision that for 90 years prevented the leaders of independent agencies from being fired at the president’s whim. The ruling hands a White House mired in corruption sweeping new power over the agencies that regulate Wall Street and protect workers and consumers. The Court did draw one line: it kept in place a lower court order blocking Trump from firing Federal Reserve governor Lisa Cook, making clear the judiciary sees the central bank and the bond market stability it provides to Wall Street as deserving special protection that workers and consumer agencies do not.

Many who are alarmed by both this decision and this president will instinctively rally around the principle the Court just discarded: agency independence. But that is the wrong thing to focus on. Agency independence is just the latest victim of our courts’ increasingly aggressive power grab, and so making it the rallying cry in this moment would squander a far more important opportunity — calling for judicial reform.

The truth is that independence was never a reliable marker of good government. Whether an agency was insulated from presidential removal had little to do with how well it delivered for the public. Some of the worst economic failures of the past few decades happened under the watch of independent agencies. It was independent financial regulators, for example, who waved through the toxic mortgages and reckless Wall Street bets that collapsed the economy in 2008. And it was an independent Federal Trade Commission (FTC) that spent decades failing to stop the corporate consolidation that Americans now feel every time they pay a hospital bill, a grocery tab, or a rent check.

The core problem isn’t agency structure. It’s the deliberate effort by these agencies to deregulate wide swaths of the economy and strip away the protections that working people, consumers, and small businesses depend on. Independent or not, these agencies were created to stop corporate America’s worst tendencies. But too often, they don’t even try to do their jobs, capitulating to corporate interests and in many instances fully aligning with the industries they were supposed to keep in check. Now, this Court has ensured there are even fewer checks standing between concentrated corporate power and the rest of us.

Instead of calling for reinstating a system that was failing, we have to name what really happened.

For decades, conservatives mounted an organized effort to hamstring the ability of regulatory agencies to faithfully carry out their congressionally mandated public interest missions. Many corporate-aligned liberals followed along without much resistance. Courts across the system were complicit, overruling the will of Congress along the way.

Now, in Trump v. Slaughter, a partisan majority on the Supreme Court has once again moved to advance the interests of corporate America at the expense of the American people. The Court’s decision to throw out the century-old law at issue in Slaughter is grounded not in a careful reading of the Constitution or some faithful adherence to jurisprudence; it is a power grab by unelected, life-tenured judges, taking authority away from the people’s elected representatives to legislate on their behalf. It belongs to a pattern we can all see: a Supreme Court that opened the floodgates to corporate money in elections with Citizens United, that has made it easier to rig congressional districts through gerrymandering, that has quietly built new legal doctrines to prevent workers and consumers from holding lawbreaking corporations accountable and government from delivering direct economic support to American families, and that is more than complicit when handpicked industry-friendly judges in the lower courts lay waste to popular initiatives.

The long-overdue answer to this crisis is court reform. That means seriously considering proposals like expanding the bench, imposing term limits so no narrow majority can entrench itself for a generation, ending forum-shopping, limiting courts’ jurisdiction and ability to overrule Congress, and enforcing a real ethics code so that Supreme Court justices are held to the same level of accountability as judges on lower courts. That is a far more powerful and durable answer than trying to legislate back an institutional arrangement that wasn’t working for ordinary people in the first place.

Who controls these agencies and to what end matters enormously. But we do not need to mourn a legal doctrine that the public never gave a thought to and under whose auspices the agencies rarely delivered. The American public doesn’t distinguish between independent and nonindependent agencies — to them, all federal agencies belong to the administration in power. Defending agency independence as an abstract legal concept therefore conflicts with how ordinary citizens experience and assign accountability for government action.

What the Supreme Court’s decision does is force us to ask ourselves how we are going to rein in this unaccountable body that has been so severely captured by corporate interests. In a post–Humphrey’s Executor world, policymakers should focus on safeguarding the rights of working people—rather than the proper bureaucratic processes governing the agency—when it comes to all branches of government

If we are going to live in a democratic country that can root out corruption and stand up to oligarchs, we have to reform our courts. Nostalgia for agency independence serves no one. We must look to the future to rebuild a government that actually serves its people and holds the powerful to account and we can start by demanding court reform.