A New Essay of Mine: Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter

Bruce Ackerman

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. Take a look at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6336798

Justice Barrett emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century -- beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As she pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable. 

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor. After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion. 

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analyses of the constitutional significance of the half-century of history that she was emphasizing. It happens, however, that I spent a great deal of time exploring these issues in preparing my multivolume series We the People -- and I believe that it powerfully supports Justice Barrett's interpretation of its constitutional significance. 

To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes that it presents. Indeed, this is precisely why I believe that the Court should defer its final decisions in Slaughter and Cox to 2027 so as to give the Justices the opportunity to make a genuinely thoughtful decision on an issue that will profoundly shape the course of American government for generations.