The recent Supreme Court decision in
Trump v. Slaughter
sheds light on the ongoing complexities surrounding the separation of powers within the U.S. government. At the core of the Court’s opinion was the challenge to the statutory removal protections for Federal Trade Commissioners, which the majority held were contrary to the Constitution’s separation of powers. However, this finding is emblematic of what some critics consider to be a troubling habit in the Court’s reasoning: reliance on an abstract interpretation of separation of powers rather than specific constitutional text.
While the term “separation of powers” appears to influence various Supreme Court decisions, such as
Free Enterprise Fund v. PCAOB
and
Seila Law v. CFPB,
the Constitution itself does not contain any textual separation of powers clause. Instead, as law professor John F. Manning emphasized in his
analysis,
the Constitution details the separation of powers through its allocations and conditions on federal power.
The decision in
Slaughter
suggests the Court’s implicit reliance on Article II’s vesting and take care clauses, which are integral to the executive power vested in the President. These clauses suggest that for the President to execute laws faithfully, he must have the authority to remove certain principal officers, a power the Court appears to believe is implicitly supported by the Constitution.
An additional layer of complexity is introduced when considering the Vice President of the United States, who the Court declared is not subject to presidential removal. Intriguingly, this determination is aligned with the Constitution’s positioning of the Vice President within the Legislative Branch, as articulated in the provision that establishes the role as President of the Senate. This legislative positioning, alongside the Vice President’s separate electoral process, delineates the role from being directly subject to presidential removal.
For legal practitioners and scholars, these decisions stress the importance of understanding not only the textual provisions of the Constitution but also the subtle interplay between its articles. As the Court sometimes defaults to abstract principles, it becomes essential for those invested in constitutional law to dissect these implications meticulously, ensuring that the next generation of legal minds addresses the silent contours that the Court, at times, leaves unarticulated. Those interested in a deeper dive into these complexities will find an insightful investigation in the full article, available
here.