Dear All:
Of possible interest.
Bruce
Yale Journal on Regulation (March 18, 2026)
Justice Barrett’s Remarkable Contribution to the Debate Over “Independent” Agencies
By Bruce Ackerman
at
https://www.yalejreg.com/nc/justice-barretts-remarkable-contribution-to-the-debate-over-independent-agencies/
Within two months of his arrival in the White House, Donald Trump fired Commissioner Rebecca Slaughter from the Federal Trade Commission because, in his words, “her position on the
agency is incompatible with this Administration’s policies.” Yet the FTC statute permits presidents to fire Commissioners only on a showing of “inefficiency, neglect of duty, or malfeasance in office.” Worse yet, he did not give her a chance to contest his
determination at a hearing—merely sending
her an email stating that he had already made a final decision on the matter.
Three months later, Trump followed up by firing Lisa Cook from the Federal Reserve. This time around, he didn’t write her an email but
announced
his decision on his Truth Social account—even though she was protected by
more
rigorous provisions than those safeguarding FTC Commissioners.
Given Trump’s direct attack on
Humphrey’s Executor, both Slaughter and Cook went to federal court to demand their immediate reinstatement. In response, judges rapidly issued
injunctions barring
their removal from office—but only on a temporary basis, since they needed time to consider whether recent Roberts Court decisions undermined the application of Justice Sutherland’s formerly canonical reasoning in
Humphrey’s Executor to their particular cases.
At that point, however, the Roberts Court intervened. Despite an elaborate dissent by their three Democratic-appointed colleagues, the Republican-appointed Justices refused to allow
the lower courts to come to thoughtful judgments before the Supreme Court considered the fundamental issues involved. Instead, the majority issued an “emergency” order expediting their own consideration of the merits with blinding speed. On December 8th,
2025, the Court heard final arguments in Slaughter’s case—less than three months after it issued its emergency order of September 22nd. It then
heard
Cook’s case on January 21st—shortly after the Justices returned to Washington after their New Year break.
The Justices’ rush to judgment has led almost all serious commentators to predict that the six conservatives will repudiate
Humphrey’s Executor—which has served as the unquestioned constitutional foundation for the construction of a host of independent agencies over the course of the twentieth century.
In contrast, when Trump fired Cox in June, commentators expected the Court to carve out a special exception for the Federal Reserve. Given the agency’s central role in the world economy,
almost everybody believed that the conservative majority would require Trump to respect the independence of Federal Reserve Governors and allow Cox to return to office.
To sum up the conventional wisdom in a two-part formula: the Roberts Court would be driven by a combination of partisanship + prudence. On the one hand, partisanship will play a decisive
role: the six Republican appointees (including the three Trump appointees) would liberate their Republican President from the frustrating restrictions imposed by
Humphrey’s Executor. On the other hand, prudence will restrain their partisanship in dealing with the Federal Reserve, since allowing Trump to fire Cox could readily provoke a worldwide economic crisis.
But when I tuned into the oral argument in
Slaughter, I came to a very different conclusion. I repeatedly
heard one of the conservative Justices challenge the basic premises of Solicitor General D. John Sauer’s attack on the Federal Trade Commission.
In Justice Amy Coney Barrett’s view, the FTC’s statutory creation should not be viewed as if it were an illegitimate effort by Congress to seize control over the executive branch.
Instead, when it was established in 1914, it was viewed as a response to the fact that congressional leaders, as well as presidents, will typically lack the expertise required to assess the real-world threat posed by real-world monopolies to the interests
of workers and consumers—since this requires a mastery of economics that can only be obtained through professional training. At the same time, presidents may have overwhelming incentives to transform regulatory agencies into instruments that will maximize
the chances of political success in the next election.
Worse yet, the federal judiciary can’t be expected to serve as an adequate safeguard against hyper-politicization or scientific incompetence. Although judges have the professional
background to assess complex questions of constitutional and statutory interpretation, they don’t have the expertise to assess the FTC’s deployment of statistical and scientific analysis to assess concrete abuses of market power in key sectors of the economy.
So far as she was concerned, Sutherland’s unanimous opinion in Humphrey’s Executor represented a genuinely profound effort to redeem the Enlightenment principles expressed in the Federalist Papers in way that plausibly responds to the social-scientific
challenges of modernity.
At the same time, Justice Barrett emphasized that it would be a big mistake for the leaders of the three branches to abdicate their ultimate decisionmaking authority to technocrats.
Instead, the challenge is to build on-going institutional relationships between the FTC and the three traditional branches. In this way, the “fourth branch” can deploy its expertise in ways which assist, rather than undermine, the on-going efforts by political
and juridical leaders to revise statutory standards in ways that respond to the changing threats to the public interest posed by changing forms of monopoly exploitation over time.
She
recognized,
of course, that organizing this collaborative effort is no easy matter. Nevertheless, wouldn’t the utter destruction of the “fourth branch” make it virtually impossible to resolve the real-world challenges confronting American government?
Justice Barrett, moreover, was not content with defending the basic principles advanced by
Humphrey’s Executor. She repeatedly encouraged her colleagues to consider the ways that the FTC’s claim to independence has been legitimated by 150 years of constitutional development—beginning with President Grover Cleveland’s success in convincing
Congress to create the Interstate Commerce Commission as America’s first independent agency in 1887 and continuing throughout the twentieth century.
It is precisely at this point at which her appeals to history converged with my own work—since the rise of independent agencies over the twentieth century served as a central theme
of Transformations,
the third and final volume of We the People. To be sure, this book was published in 1998 and did not anticipate the political and judicial developments of the past quarter-century that have led to the appointment of a series of Justices who have increasingly
challenged Humphrey’s Executor’s canonical status. Nevertheless, I had devoted many years of serious research during the 1990s to exploring the concrete historical dynamics that led to the repeated construction of independent agencies during the previous
century—making it seem important to update my 1998 analysis to clarify the shattering character of Trump’s break with the past. Despite the pessimism of my fellow court-watchers, I decided to devote most of my time writing an essay, ultimately amounting to
15,000 words, elaborating the historical experience that served as the foundation for Sutherland’s unanimous opinion of 1935—and I posted
my
effort on SSRN shortly before the oral argument on December 8th.
Once I heard Justice Barrett’s remarkable interventions on December 8th, however, it seemed worthwhile to
revise
my earlier effort to focus on the particular turning points she marked out as especially important.
Even if this new essay of mine succeeds in persuading readers that Justice Barrett’s claims have powerful historical support, I do not suppose that it should play a decisive role in
the Court’s current deliberations. At best, it suggests that the Justices should suspend their final decisions in
Slaughter and Cox until they can hear a new round of argument during the next term of the Court—in which Solicitor General Sauer would no longer be surprised by Justice Barrett’s questions but could respond in ways that confront the remarkable
history surrounding the rise of independent agencies over the past 150 years.
By calling for reargument, moreover, the Justices would also give lots of serious scholars the time they need to fill the law reviews with essays that move beyond the approach I have
taken here. As a consequence, when the Roberts Court announces its final decisions in
Slaughter and Cox during the Spring of 2027, its opinions will express a much more thoughtful assessment of
Humphrey’s Executor than is currently possible in the Spring of 2026—regardless of the ultimate outcome of the majority’s decisions.
To give you a sense of my larger argument, I’ll conclude this piece with a few points in support of Justice Barrett’s historical claims—beginning with Grover Cleveland’s success in
convincing Congress to create America’s first independent agency—the Interstate Commerce Commission—in 1887.
In a remarkable act of self-restraint, Cleveland refused to allow Congress to enact a statute that would allow presidents—including himself—to appoint their political allies to the
Commission. If this happened, the agency would predictably set “fair and reasonable” rates for partisan purposes—requiring the railroads to charge especially low rates in states dominated by the president’s political party and especially high rates in regions
controlled by the president’s opponents. Instead, each Commissioner was granted a term of six years in office, and vacancies were staggered in a way that made it impossible for any president to appoint more than two members during his four years in the White
House. Even if a president gained reelection, the statute insisted that “[n]ot more than three of the Commissioners shall be appointed from the same political party.” No less significantly, the statute broke new ground by requiring the Commission to recruit
a special staff of economists to provide the requisite expertise and then took extraordinary measures to prevent special interests from corrupting their professional integrity.
Even more important, Cleveland’s breakthrough inspired his successors to establish new independent agencies to confront the scientific revolutions of the early twentieth century.
During his tenure, Theodore Roosevelt gained the support of Congress for an independent Food and Drug Administration to deploy biological and medical science to protect ordinary Americans against the health risks generated by the “free market.” William Howard
Taft’s principal target was the rapid rise of the radio and telephone and the threat of their monopolization by a plutocratic elite. He responded by convincing Congress to expand the ICC’s mission beyond railroads to include regulatory control over these radically
new forms of public and private communication.
Woodrow Wilson went even further when he won the White House in 1912 and led his fellow Democrats to decisive majorities in Congress. His electoral triumph was based on campaign speeches
urging voters to embrace his vision of a New Freedom—requiring the construction of independent agencies, deploying the insights of social science, to preserve individual liberty in a world transformed by the economic and scientific revolutions of the
early twentieth century. Moreover, he had recruited Louis Brandeis to draft remarkably elaborate statutes, creating the Federal Trade Commission and the Federal Reserve Board, that would make The New Freedom into powerful reality. Despite the bitter resistance
of big business, both were enacted by 1914. Wilson then followed up on these legislative triumphs by gaining Louis Brandeis’ appointment to the Supreme Court when the next vacancy opened up in 1916—making him an eloquent defender of the constitutionality of
the “fourth branch” when Justice Sutherland reached out to him in working out the terms of
Humphrey’s Executor in 1935.
As I suggested,
my
new essay says a lot more about these events and many other matters. But for now, I hope I have said enough to suggest why the Roberts Court should—at the very least—reconsider
its rush to judgment and require both sides to reargue the merits of both Slaughter and
Cook before handing down its final decisions on an issue that will shape American government for a very long time to come.
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University, and the author of nineteen books in political philosophy, constitutional law, and public policy.