As a new school year gets underway, law students might expect to soon be called upon to answer a seemingly simple question: What did the Supreme Court hold in Trump v. Slaughter? A student who has dutifully done the reading might respond by quoting the chief justice’s majority opinion, which describes the court as holding statutory removal protections for Federal Trade Commissioners to be “contrary to the separation of powers enshrined in the Constitution.” But that quote really only offers the beginnings of an answer. And Slaughter’s incomplete description of its own holding is indicative of a vice exhibited throughout many of the court’s recent separation of powers decisions.
To better understand the vice of which I refer, let’s start with some basics: The Constitution does not contain a separation of powers clause. Instead, the Constitution contains a multitude of specific provisions that enforce the separation of powers in specific ways. As law professor John F. Manning summarized, “the Constitution adopts no freestanding principle of separation of powers” but instead “reflects many particular decisions about how to allocate and condition the exercise of federal power.” To say that a statute violates the separation of powers is thus to offer an incomplete conclusion; the relevant legal question requires asking, well, which part of the separation of powers has been violated?
Examples of the court’s unfortunate reliance on an abstract and freewheeling conception of the “separation of powers” can be seen across multiple decisions. In Free Enterprise Fund v. PCAOB the court held “that the dual for-cause limitations on the removal of [the Public Company Accounting Oversight] Board members contravene the Constitution’s separation of powers.” A second example is offered by Seila Law v. CFPB, where the court held “that the structure of the [Consumer Financial Protection Bureau] violates the separation of powers.” A third example is offered by West Virginia v. EPA, where the court partially justified the major questions doctrine on undefined “separation of powers principles.” And the latest example is offered by Slaughter, where, as already noted, the court ruled removal protections “contrary to the separation of powers.”
I do not refer to the above-mentioned rulings as a vice because I think those rulings were wrong. To the contrary, I think the Roberts court’s slow and steady march toward the presidential removal power recognized in Slaughter relied on a correct understanding of the relevant constitutional provisions at play. The problem, in my view, is that the relevant constitutional provisions were not clearly analyzed by the court. Instead, the relevant constitutional provisions were left camouflaged beneath the surface of the court’s analyses, which relied on vague references to the “separation of powers” in the abstract, rather than specific separation-of-powers provisions.
What, then, were the precise separation-of-powers provisions at play in Slaughter? The best reading of Slaughter is that the court implicitly grounded its conclusion in the Article II vesting and take care clauses. The Article II vesting clause states that “[t]he executive power shall be vested in a President of the United States of America,” while the take care clause states the president “shall take care that the laws be faithfully executed.” And although the court’s opinion in Slaughter does not include a crisp sentence that expressly relies on those two clauses, references to the clauses appear throughout the court’s analysis and have served as focal points of the relevant scholarship for some time. As Justice Neil Gorsuch summarizes at the start of his concurrence in Slaughter, “[t]o fulfill his constitutional duty to ensure the laws are faithfully executed, the Court holds, the President” who is constitutionally vested with the executive power “must have the ability to remove principal officers who exercise executive power in his name.”
Another possible clause at play in Slaughter was the appointments clause, which requires principal officers to be appointed by the president with the advice and consent of the senate, and which undergirds the theory that the power to remove is ordinarily incidental to the power to appoint. Under the relevant variant of that theory, officers appointed by the president would be removable by the president. But although Justice Amy Coney Barrett and the solicitor general had a colloquy at oral argument that discussed the appointments clause, and the court’s opinion in Slaughter includes some discussion of a relationship between the powers to appoint and remove, it would go too far to say that the Slaughter court relied on the appointments clause in any significant way. Instead, for the reasons provided earlier, the best reading of Slaughter is that it relied on some combination of the Article II vesting and take care clauses to rule that the challenged removal protections were unconstitutional.
Being specific about Slaughter’s holding is not only important for the law students who might be cold-called this upcoming school year. It is also important for making sense of the court’s decision in light of another vice – namely, the vice president of the United States.
In Slaughter, the court stated in matter-of-fact terms that “Of course the President could not fire” the vice president. But if the president’s removal power is ultimately traceable to an abstract conception of the “separation of powers,” is that actually so obvious? After all, the vice president is positioned to bring tremendous influence to bear on policies throughout the executive branch – not just policies that happen to fall within the purview of any one agency or commission. Given as much, one might be inclined to think of the vice president as being one of the most important voices within the executive branch, and thus reason that if the “separation of powers” empowers the president to fire relatively obscure federal commissioners, the same “separation of powers” should similarly empower the president to fire the vice president.
But the constitution’s text deviates from what one might intuitively think the “separation of powers” requires in the abstract. And by tracing the president’s removal power to the constitution’s actual text, rather than an abstract conception of the “separation of powers,” one can readily harmonize the president’s ability to fire federal commissioners with the president’s inability to fire the vice president.
Although one might intuitively think of the vice president as formally existing within the executive branch, the Constitution places the vice president, unintuitively, in the legislative branch. More precisely, the Constitution establishes the “Congress of the United States” as “a Senate and House of Representatives,” and clarifies that “The Vice President of the United States shall be President of the Senate” with the power to cast tie-breaking votes.
In light of the vice president’s legislative character, a court that carefully traces the president’s removal power to the Article II vesting and take care clauses can harmonize a broad presidential removal power with the president’s inability to remove the vice president. And that is because the vice president, unlike the head of an executive branch commission, does not ordinarily exercise any of the executive power constitutionally vested in the president. That means the vice president is ordinarily limited in his or her ability to formally interfere with the president’s faithful execution of the law. And so it follows that a presidential removal power flowing from the Article II vesting and take care clauses need not extend to removing the vice president. (In addition, note how a presidential removal power traced to the appointments clause would also not extend to the vice president, given that the vice president is separately elected and thus is not appointed by the president.)
The court did not carefully parse the vice president’s constitutional status in Slaughter. Instead, the court merely hinted at the vice president’s legislative character by clarifying that the president’s inability to fire the vice president does “not mean that” the president is “unable to oust” the vice president “from service within the Executive Branch itself.” To be sure, I happen to think that the court was correct to say as much; Congress is no more able to statutorily empower the vice president to exercise executive power outside of the president’s control than congress is to empower a federal commissioner to do so. But it takes more than a vague reference to the “separation of powers” to satisfactorily defend that conclusion while also insisting that the president cannot formally fire the vice president. Instead, a proper understanding of the relationship between the president and vice president is best supported by a careful analysis of the constitution’s actual text, which, again, treats the vice president in unintuitive ways.
In sum, the Supreme Court has not been particularly clear when discussing the precise constitutional provisions that support some of its most important rulings concerning constitutional structure. And it is in that sense that the court’s decisions have exhibited a particular vice. To remedy that vice in the future, the court should discuss the Constitution with more precision. But for the moment, the task of explaining the implicit details of the court’s analyses would seem to fall to scholars, advocates, and even cold-called law students – the latter of whom would be wise to do their readings with an eye toward making sense of the broader constitutional picture.
