Trump v. Slaughter and the Twenty-Second Amendment

Jeffrey N. Gordon Supreme Court decisions of the recent term threaten to undermine the regulatory system that has supported US economic growth and prosperity for nearly 100 years. Many have objected to the Court’s failure to give weight to the risk of such costly destabilization. The Court’s response, presumably, is “it’s the Constitution, not us.” The flaw is that the Court has ignored a critical part of the Constitution, the Twenty-Second Amendment, which enacts a 20th century model of presidential empowerment that calls for sustaining the “for cause” removal protection at issue in in Trump v. Slaughter and Trump vs. Cook. In a series of cases that culminated in this term’s decisions, the Supreme Court has transposed the Framers’ desire in 1789 to create an “energetic” president into a decision rule that Congressional fashioning of regulatory agencies headed by commissioners with “for cause” protection was an impermissible encroachment on “executive power.” In a prior decision…