We humans are biased toward understandings of reality that include some minimum level of optimism about the future. But if we ignore the bad news, we shut ourselves off from parts of the truth. Which brings me to the Supreme Court’s forthcoming Slaughter decision.
In December the Supreme Court heard oral argument in the case of Trump v. Slaughter, and gave every indication that it would rule that federal statutes limiting the president’s ability to fire the heads of independent commissions — like the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission, the Securities and Exchange Commission, the National Labor Relations Board, and in Slaughter, the Federal Trade Commission – are unconstitutional.[1]
Statutorily independent commissions date to the late 19th century with the creation of the Interstate Commerce Commission. They were partly a reaction to the corruption that the patronage system incentivized, and partly an acknowledgement by politicians that dampening the influence of partisanship on policy decisions yields better decisions that are more representative of the popular will. So it is ironic that the Supreme Court’s has chosen this time to strip these agencies of their independence under the most corrupt administration in modern times. (The Wall Street Journal reports that for criminals the “going rate” for a presidential is $1 million.)
Independent commissions typically have multiple leaders (commissioners), each appointed by the president and confirmed by the Senate for designated term of years. The statutes creating these commissions specify that only a bare majority of commissioners can be from the same political party, and they cannot be fired before the expiration of their term except for “good cause,” meaning misbehavior that goes beyond defying the president’s policy preferences.
The oral argument made clear that forthcoming Slaughter opinion will reverse that last conclusion, overturning a 1935 precedent that came down only a few months before the passage of the 1935 Federal Power Act.[2] It will render meaningless the term-of-years and bipartisanship requirements in those statutes. And in today’s policy environment dominated by bitter inter-party animosity, Slaughter is almost certain to wreak havoc in all regulatory policy fields, energy policy included.
Historians and legal scholars have thoroughly eviscerated the heterodox theory behind this decision, something called the “unitary executive theory” that has nevertheless continued to percolate among conservative legal thinkers – a world inhabited by the Supreme Court’s majority – since the 1980s or 90s. It is a strangely myopic and ahistorical reading of the first (topic) sentence of Article II of the Constitution, the which vests “the executive power” in the president. The theory’s devotees imbue that phrase with broad overarching implications that minimize the importance of other language in Article II, including the clause obligating the president to “take care that the laws are faithfully executed.” They turn a blind eye to the forest to in order to focus on one tree.
But those critiques are old, very well-ploughed ground about which readers can easily find more information elsewhere. This rest of this post will try to explore the energy policy havoc that the decision is almost certain to produce.
What Will Happen First?
When tracing the likely reactions to the decision, it is useful to remember that MAGA voters control the behavior of most GOP politicians, insulating the president’s energy policy whims from congressional or state legislative sanction in ways the Democrats do not (yet) mirror. Given that, the following sequence seems likely:
1. Once the Slaughter decision is issued, President Trump seems likely to fire most Democratic appointees to all of the major independent commissions, including the FERC.[3] The intention will be to eliminate obstacles to the president’s policy initiatives, like preventing uneconomical coal-fired power plants from retiring, discouraging renewables growth, and other elements of the “energy dominance“ agenda (that Democrats oppose). A more Trumpian FERC might also delay or slow the development of new interregional transmission lines necessary to get cheap wind and solar power to market, or require regional grid operators to deny grid interconnection for new wind and solar power projects in favor of natural gas fired plants.
2. Securing Senate approval of Trump’s replacements will require the suspension of the filibuster, inviting Democrats to do the same in the future when (and if) they control the Senate. Without suspending the filibuster, refilling the empty seats seems difficult-to-impossible.
3. The FERC’s quorum rules require three commissioners present in order to make binding decisions. The FERC’s five sitting commissioners consist of three Biden appointees and two Trump appointees. But one of the Biden appointees is a Republican. So Trump may decide to fire only the two Democrats, thereby maintaining a quorum even if he has difficulty filling the other two seats.
The upshot is that FERC policymaking (and executive branch policymaking in general) will become less centrist and bipartisan. For the remaining Trump years, that means policies that more aggressively thwart clean energy development.
The Long Term
To populists within each party, the longer term prospect of imposing their policy preferences without pressures to accommodate the other party may sound attractive. But it is worth remembering that appointees require senate approval, and the Senate is an institution in which each party views the other’s energy policy agenda with deep alarm. At the same time, the average American voter wants an energy policy that doesn’t ignore or trample on any of the three objectives of energy policy: a reliable supply, an affordable supply, and a supply that does as little environmental harm as possible. And when push comes to shove, that voter prioritizes preventing climate harm last among those values — at least for now. So …
4. Assume that a Democrat is elected to the White House in 2028. That person will face a solidly Trumpian FERC, and will want to fire all or most of the existing commissioners in favor of more left-leaning replacements. If the Senate is still controlled by the MAGA-dominated Republican Party, it is very likely to withhold its approval on the basis that any Democrat nominees are too radical, regardless their actual ideologies or agenda. (If this sounds far-fetched to you, google “Merrick Garland.”) This will freeze the business of energy governance indefinitely, leaving the existing policies in place. It will thwart, for example, Democrats’ plans to rebalance grid interconnection priorities in favor of inexpensive clean energy projects, or use the FERC’s backstop siting authority under the Federal Power Act to authorize badly needed interregional transmission. The new president will face a choice between (a) no commissioners, or (b) the commissioners he or she inherits.
5. If Democrats control the Senate, they will have to suspend the filibuster in order to clear the president’s nominees. If the Democrats’ majority is slim, Democrats representing “purple” states (like North Carolina or Maine) or blue states with a strong fossil fuel industry (like New Mexico) may demand that moderate Democrats be appointed to these positions. That, in turn, will limit the ability of the newly-reconstituted FERC to take an aggressive approach to the energy transition.
6. So, in sum, when the GOP controls the White House, energy policy will be aggressively anti-climate policy because Republican senators tend to approve GOP nominees; when Democrats control the White House, energy policy will be only tepidly pro-climate policy because Democratic Party control depends (for now, at least) on moderates who do not fall in lockstep behind Democrat presidents.[3]
7. Democrats seem unlikely to be satisfied with a future that involves trading control of the executive branch under those terms. As that frustrating future unfolds, it may hasten the ongoing growth of the progressive wing of the party at the expense of the moderate wing. If voters connect the various out-of-pocket costs they incur from climate change to that cause, and those issues become more salient than culture war issues (which favor moderates and Republicans), then today’s moderate Democrat voters may become tomorrow’s progressive Democrats. And a more solidly progressive Democratic Party may hasten the ongoing exit of remaining moderates that is happening in both parties.
8. Those unaffiliated moderates are currently a difficult-to-predict group of swing voters, many of whom went from Obama to Trump to Biden to Trump. They punished Democrats in 2024 but flocked back to them again last November. No one seems to know exactly what they will do in any given election, other than to say they seem attracted to economic populism but uncomfortable with cultural progressivism. Whether or how MAGA FERC policies will affect their voting decisions is anyone’s guess.
Conclusion
No one can foretell the future with perfect confidence. Perhaps the Supreme Court will see these dangers ahead and change its mind. But all indications are that the Slaughter decision will raise — suddenly and sharply — the stakes associated with controlling leadership of executive branch commissions like the FERC. Higher stakes imply more fiercely negative partisanship, which in turn portends some combination of gridlock and wild policy swings.That is not an attractive policy environment for investors in new energy supply.
Ironically, this is a technologically propitious time for securing broad (even massive) support for a cautious and iterated move toward a much lower carbon energy system. Technological advancements are easing the tradeoffs between a a clean energy supply, on the one hand, and a reliable, affordable supply, on the other. And we know from polling that most people (even strong partisans) still want cleaner energy as long as it is affordable and reliable.
But at the same time, ideologically censored news and social media mislead partisans of both parties about those tradeoffs, in conflicting ways. That propaganda machine keep churning out false messages about energy, making bipartisanship all but impossible. And the Slaughter decision will throw a monkey wrench into the process of trying to realize the win-win opportunities. As a result, our energy prices will be higher than they need to be, and our energy supply less reliable and dirtier than it needs to be. At least until courageous politicians or wiser voters demand otherwise. — David Spence
——————————
[1] The $64K question is how the Court will treat the Federal Reserve, whose independence is a foundational pillar of the economy. Some suspect that the Court will find a logically flimsy way to distinguish the Fed, which would avoid the massive and negative consequences of making it a partisan political institution.
[2] Humphrey’s Executor v. U.S., 295 U.S. 602 (1935).
[3] Consistent with the analysis in my book, I assume here that Trump is a symptom of MAGA-style right populism, not a cause. Those who run for the GOP presidential nomination after Trump will face the same incentive to mobilize a negatively partisan and ideologically extreme base in order to win the nomination.
