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Gorsuch’s concurrence in Trump v. Slaughter may hold the key to the future of separation of powers jurisprudence.
In Trump v. Slaughter, Justice Neil Gorsuch voted with the majority to rule that since the Federal Trade Commission exercises extensive executive power, the president has the authority to remove that agency’s head. The upshot is that the constellation of ostensibly “independent” federal entities will now be more closely supervised by the president.
The decision’s lineup and reasoning were familiar. The six more conservative justices determined that the separation of powers prevents agencies from acting autonomously when exercising functions in the president’s remit. The three more liberal justices dissented, believing Congress has the power to create politically insulated, expertise-driven entities and vest them with cross-branch authority.
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Andy Smarick is a senior fellow at the Manhattan Institute, where his work focuses on education, civil society, and the principles of American conservatism.