Opinion: Handing agency oversight to Trump is a fatal blow to public trust

The Supreme Court last month took away a pillar of agency independence. It is a monumental change in the law, and one made more important when we recognize why we had agency independence in the first place.

For most of the country’s history, Congress has been able to bar presidents from firing federal employees — from the heads of independent regulatory agencies down to career civil servants. In Trump v. Slaughter, the court ruled that this common statutory limitation on presidential power was unconstitutional. It granted the president the power to fire any agency head (and, perhaps, any agency employee) for any reason — even purely political reasons. 

This is a brave new world, and not just because concrete regulatory policies will now be subject to much greater political control by the president. With Trump v. Slaughter, something even more important to our democracy took a body blow. That something is trust: trust in the information that agencies routinely communicate to the public and that the public relies on in countless ways to navigate (quite literally) our complex and dangerous world.

We’re so reliant on this information that we barely recognize where it comes from. GPS technology, the weather forecast, public advisories of tainted food recalls — all of this and much more comes from administrative agencies. In many ways, agencies do not even have to exercise legal power to influence the world. A lot of regulation, it turns out, is accomplished through self-regulation by people who are empowered to avoid harms and pursue their freedoms with the benefit of good, reliable information procured and produced by agencies.

Agency independence was a bulwark against the president using the administrative state to construct a politically convenient reality. One does not need to look far back in time to find examples of what will soon be lost. 

When, in his first term, President Trump suggested that news networks ought to lose their licenses for their unflattering coverage of him and his policies, the then-independent Federal Communication Commission chairman took a strong stance in favor of the First Amendment, asserted his (and the agency’s) independence and refused to play ball.

And when a plane crashed over the Potomac River last year after colliding with an army helicopter, killing 67 people, the then-independent National Transportation Safety Board used its independence to call out the Federal Aviation Administration’s “deep, underlying systemic failures.”

None of this is guaranteed to happen after Trump v. Slaughter, now that the president has the power to fire officials who dissent from the party line.

We have already seen some glimpses of what a compromised agency informational ecosystem might look like now that the floodgates have been thrown open. In the 1980s, the Reagan administration attempted to formally classify ketchup and relish as “vegetables.”  The federal dietary guidelines are hugely consequential — they determine what food is served to our kids in public schools and to our service members on military bases.  

More recently, the Environmental Protection Agency has been told to scrub information about climate change from its public communications, and national parks have been ordered to take down signage educating the public on the histories of women and women’s suffrage, immigrants, the labor rights movement, gay and transgender leaders, slavery in America and the civil rights movement.

There’s also the infamous “Sharpiegate” incident, when President Trump incorrectly announced the projected path of Hurricane Dorian. After federal weather forecasters responded to public confusion and inquiries by issuing a correction, Trump used a Sharpie marker to redraw the hurricane’s path on a map that the National Oceanic and Atmospheric Administration had released.

The agency, which was not independent, took it on the chin and acceded to Trump’s change. An internal watchdog agency eventually issued a report criticizing the episode, but such “Offices of Goodness” are themselves vulnerable after Trump v. Slaughter.

Ultimately, to be trusted, the information that the government provides must be trustworthy.  How would we function if we could not trust our GPS systems, the weather forecast, nutritional labels or public health guidelines? Public trust in government has been declining for decades, and Trump v. Slaughter will surely exacerbate the trend. 

By subordinating the whole of agencies’ epistemic output to the caprice of a single, partisan leader, the court leaves us with an unreliable state and emboldens a largely unaccountable president. Importantly, the president does not even need to use his power to fire dissenting voices to undermine public trust: The simple fact that he can do it taints the entire enterprise.

What is particularly distressing about this picture is that the court itself seems to understand what it is doing. In a closely related case decided last month, Trump v. Cook, the court treated one independent agency very differently by carving out the Federal Reserve Board, which oversees the economy, from the holding in Slaughter. Ironically (or not), one of the justices noted how damaging a contrary ruling would be for public and investor confidence in our economic system. 

The court, in other words, knows why independence matters. But make no mistake: What is true of the Fed is true of agencies more generally. Trust in government undergirds everything, and it is difficult to trust this new state being crafted by the court.

Haiyun Damon-Feng is an assistant professor of law at Cardozo School of Law. Daniel Walters is a professor at Texas A&M School of Law.

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