Brett Kavanaugh Questions Accountability of Federal Agencies in Trump v. Slaughter

Presidential Supervision and Agency Independence

• 🏛️ Justice Kavanaugh questioned whether Congress can create independent agencies with long terms and without political balance requirements, raising concerns about presidential supervision.
• ⚖️ The Respondent attorney argued that the FTC, with its staggered terms and presidential influence on composition, operates within constitutionally appropriate presidential purview.
• 🔑 A key constitutional basis for presidential supervision is the Take Care Clause of Article 2, Section 3, requiring the president to ensure laws are faithfully executed.

Removal Powers and Agency Accountability

• ❓ Kavanaugh probed the constitutional necessity of presidential removal powers, contrasting statutory provisions with potential constitutional requirements.
• 💡 The attorney noted that the FTC chair's removability was a statutory change, not a constitutional one, referencing Humphreys' Executor.
• ⚠️ A hypothetical scenario was presented where Congress could create independent agencies with long terms and non-removable chairs to thwart future presidents of the opposite party.

Counterarguments on Accountability and Liberty

• 🗣️ The attorney acknowledged the concern that independent agencies are not directly accountable to the people but highlighted countervailing concerns for liberty and freedom of the press.
• 📰 An amicus brief from the Reporters Committee for Freedom of the Press warned of dangers to free speech if agencies like the FCC were subject to at-will presidential removal.
• 🏛️ It was argued that invalidating the independence of these agencies would jeopardize precious First Amendment rights and that Congress could address concerns about removal protections if they posed a fundamental threat.
• 🤝 The attorney suggested that historical political accommodation has adequately resolved issues of agency independence and accountability.