“You’re Asking Us to Destroy the Structure of Government”: Justice Sotomayor

The Constitution created three branches of government, not four. There is no room in the Constitution for self-answerable bureaucracies or bureaucracies created by Congress, but functionally answering to no one except members of their own network. Even the Administrative Procedure Act, created by FDR to rein in the bureaucracy as a fourth branch of government has been almost entirely used by courts to rein in Trump’s presidential powers rather than that of the ‘independent’ bureaucrats.

Now maybe there would be some practical or moral grounds (even if not legal or constitutional ones) for independent agencies if they actually were the independent good government agencies that liberals pretend they are. They’re not. They’re invariably left of center and sliding fast.

Trump v. Slaughter, about the removal of an FCC commissioner with the unfortunate ‘slaughter’ name, looks set to roll back more of the bureaucratic state.

“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Justice Sonia Sotomayor complained.

Well yes. Destroying the structure of a gargantuan government with unlimited powers and no constitutional basis is an essentially conservative project.

Independence from elected officials also means independent of the electorate. That’s the realm of philosopher kings. And these days the philosopher kings are all lefties. That’s not to say that there shouldn’t be more limitations on executive power. There should. And Congress should exercise more oversight over the monstrous size and power of the government. But the solution isn’t a fake independence, it’s direct engagement, and the ability of the public to also litigate when its interests are legitimately threatened.