In Federalist No, 78, Alexander Hamilton famously argued that the federal courts were “the least dangerous” branch of government. What he did not understand was that they also proved, over time, to be the worst constructed. The problems here start at the top and work their way down to the bottom. As a recent New York Times column by Duke law professor Paul Carrington points out, the Constitution states that “the judges, both of the supreme and inferior Courts shall hold their offices during good behavior,” which, except in cases of corruption or moral turpitude, effectively means for life.
Big mistake. As Carrington notes, longer life spans now translate into terms of thirty or more years. The independence of the judiciary can be easily preserved with either term limits, say, of eighteen years, or a mandatory retirement age of seventy. Nearly every modern legal system understands the virtue of limiting judicial terms. Carrington, however, goes astray when he links the absence of term limits to the possibility of the conservative justices overturning the Affordable Care Act: “Liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress,” he writes.
Though conservatives should get equally exercised about the opposite effect—that is, of a reelected Barack Obama getting to appoint the next two or three justices—the real risk of a lifetime appointment is not partisanship. It is disproportionate power, not only on the Supreme Court, but for any public official.
Unfortunately, Carrington’s preferred solution is no solution at all. He proposes appointing a new justice every two years. But, he writes, “only the nine most junior justices, by years of service, would sit and decide every case. The rest would then act as a sort of ‘bench’ team, sitting on cases as needed because of the disability or disqualification of one of the junior justices.”
Adding new justices would make the fate of major legislation turn on whether a substitute justice votes in a manner contrary to that of the full-time justice. This change won’t happen without a constitutional amendment, even though one that better solves our problems than Carrington’s proposal is easy enough to draft: “No Supreme Court Justice shall serve for a term of more than eighteen years.”
The situation is every bit as critical in the lower courts. In this instance, I am in favor of a general provision that says that all newly appointed federal judges should serve for fifteen-year terms, subject to reappointment up to the age of seventy. Right now, we have a system close to this for the judges of the tax and bankruptcy courts. They serve for terms of fifteen and fourteen years respectively and are removable “for cause.” No one thinks that this situation has resulted in a decline in the independence of these judges or in the quality of their work. The only objection to this sensible arrangement is that it is, on any accurate reading of the Constitution, not permissible.
No Supreme Court Justice should serve for more than eighteen years.
Current law finds a home for these judges under Article I of the Constitution. But Article I is devoted exclusively to legislative power, just as Article II is devoted exclusively to executive power. In our constitutional scheme, all judges are located in Article III of the Constitution which states, “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The initial “the” of Article III makes it clear that all of the judicial power must be given only to courts whose judges receive the protection against dismissal during “good behavior.” Nonetheless, with the expansion of government activity during the progressive era, the political resistance to creating specialized courts with equal dignity to the ordinary district (i.e. trial) and appellate courts led to the establishment of Article I courts.
One might expect the hardy band of constitutional originalists (of which I am a sometime member) to recoil against this constitutional oxymoron, which operates as a clear circumvention of the requirements for judges set out in Article III. In Federalist No. 48, James Madison wrote that “in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary.” Accordingly, he concluded: “It is agreed on all sides that the power properly belonging to one of the departments ought not be directly and completely administered by either of the other departments.”
Nonetheless, the matter is one of little public concern since this system works so well. The bankruptcy and tax judges are confirmed by the Senate and can only be removed for cause. Their salary, like that of Article III judges, cannot be diminished during their term of office. Their shorter terms make the up-or-down decision of the confirmation process easier. The technical nature of their legal expertise tends to reduce the level of partisanship of these judges once they reach the bench. Article I judges thus offer the strongest possible evidence in support of a general movement to give Article I–type treatment to all future Article III judges.
Progressives see "separation of powers" as a useless impediment to sound government.
The same, however, cannot be said with a second key deviation from the original plan, one that received its constitutional blessing in the critical 1935 Supreme Court decision, Humphrey’s Executor v. United States, which was handed down in the middle of the struggle over the New Deal. As president, Herbert Hoover had appointed Humphrey as Commissioner of the Federal Trade Commission, which had been created in 1914 when the progressive Woodrow Wilson was president. When Roosevelt took office, he claimed that, as president, he had the same power to remove commissioners of an independent agency as he did of his own Secretary of State. In his view, all executive power was vested in “a President” of the United States—FDR himself.
The Supreme Court took a very different view of the case. In a unanimous decision, the Court held that Congress had acted within its rights when it insisted that FTC commissioners could only be dismissed for cause. In handing down this decision, Justice Sutherland refused to follow the earlier 1926 precedent of Myers v. United States. In that case, former President (then–Chief Justice) William Howard Taft held—after an exhaustive historical examination of the subject—that the president did have the absolute power to remove persons in the executive branch, including Myers, an Oregon Postmaster First Class, notwithstanding a 1876 law that provided that he could be only removed with the consent of the Senate.
It should have been evident to everyone that the duties of an FTC commissioner are vastly more extensive than those of a postmaster. The question is which way does that difference cut. One argument is that it is all the more important to make agency commissioners subject to presidential dismissal so that Congress would not be tempted to vest great powers in those independent agencies, known today as the “fourth branch” of government, a branch that answers directly to no one in the other three.
From a limited government perspective, this hostility to independent agencies seems sound precisely because it uses a structural device to keep the size of government down. Congress will only pass legislation when it is comfortable with the distribution of key powers between the executive and judicial branches of government.
The implicit background premise for this conclusion is the presumption of distrust that applies to every application of government power. But during the Progressive era, the emerging consensus was that the expertise of the administrative state rendered these structural protections unnecessary. Sutherland bought into this when he wrote:
The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts "appointed by law and informed by experience."
This naïve caricature received academic support three years later from James Landis, who, in his highly influential book The Administrative Process, promoted exactly this vision of government. He saw the separation of powers as a useless impediment to sound government administration. But it should have been evident at the time that Sutherland and Landis badly misfired on the relationship between politics to administration. The reason why Roosevelt wanted Humphrey out of office was because of the deep political differences between them that could not be papered over by abstract appeals to the “nonpartisan” nature of the commission or the “impartiality” of its members.
The judiciary is the worst constructed branch of government.
These commissions all operate in highly specific areas, and the only people, left or right, who have the expertise to serve on them have strong views about key issues. These so-called neutral experts are appointed along party lines, with the president making the decisive nomination.
To give but one example, in the mid-1930s, the Federal Communication Commission had on its docket the question of whether Republican newspapers should be given key control over newly licensed radio frequencies. To make matters worse, the FCC allocated new broadcast frequencies under a loose “public interest, convenience and necessity” standard, which gave the FTC oodles of discretion to decide which applicant would get what frequency. The mixture of weak property rights and politically committed commissioners was and is a recipe for disaster.
Nonetheless, Sutherland turned constitutional cartwheels to get to his preferred conditions. It is true enough that the FTC was neither political nor executive. But it was just false to assume that it was “quasi-judicial and quasi-legislative.” The hard and fast divisions that Madison defended had no “quasi” powers at all. Nor were any needed to deal with supposed problems. It was always possible to place the investigative functions in Congress, which surely has the power to take inquiries over whether new laws should be added or old ones amended. It was always possible to place the FTC’s enforcement in the Department of Justice, which routinely enforces antitrust laws today.
Most critically, it was always possible to place the adjudication of particular cases in either Article III or Article I courts, where they are effectively insulated from the intense politics that surround the formulation and enforcement of government policy. On this score, the subsequent history of all of the specialized agencies like the FTC has proved the superiority of a structural design that never allows the parties who make the various rules to also be their enforcers.
In my judgment, it is just too dangerous to allow the same group of individuals to deal with matters that could be divided among three separate agencies. Indeed, the history of trade, communications, securities, and labor disputes inside the FTC, the FCC, the Securities and Exchange Commission, and the National Labor Relations Board is a good reason to condemn the dangerous constitutional experiment of Humphrey’s Executor to the dust-bin of history. There is no strong reliance issue that should perpetuate these failed independent tribunals. The Supreme Court can overrule Humphrey’s Executor. In so doing, it will shrink the size of government and improve its overall administration.
Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).