Under our constitutional Federal government there are exactly three branches—judiciary, legislative, and executive—neither more nor fewer. The legislative—our Congress—can, and does, create departments (other than the Constitutionally mandated State and Defense (however titled)) and agencies within the Executive Branch. Our Constitution names the President as the Chief Executive of the Executive Branch with sole responsibility for enforcing the laws that Congress enacts.

Whether Congress claims this or that agency to be “independent” or not, all of those agencies, by being within the Executive Branch, are—must be—under the control of the President, which control includes the hiring and firing of all of an agency’s employees, and the firing aspect of that includes politically appointed employees who must be confirmed by the Senate after a Presidential nomination in order to fully take office.

That firing authority was finally acknowledged by the Supreme Court in its just released ruling in Trump v Slaughter, which explicitly overruled the 91 years prior wrongly decided Humphrey’s Executor v US.

William Galston demurred from that ruling in his Tuesday Wall Street Journal op-ed.

While the chief justice is right that the FTC’s executive functions have expanded since 1935, it hasn’t ceased to exercise legislative and judicial functions as well. The FTC isn’t simply part of the executive branch; it was designed to be independent. It’s hard to see why Congress can’t mandate special firing procedures for such hybrid entities.

The FTC isn’t simply part of the executive branch; it was designed to be independent. That’s Galston’s error. There are only those three branches of our government; “independent” agencies cannot exist outside of those three, and being within one or another of them, they cannot be independent. Nor can they carry out, from within one of them, any of the functions of either of the others—that would eliminate the separation of powers that is at the core of our government’s structure.

Galston made this argument, citing James Madison in Federalist No 47:

Separation of powers doesn’t mean the branches of government have no role in any other branch. It means that when “the same hands” control more than one branch of government, the fundamental principles of a free Constitution are subverted.

Madison was right, but Galston’s usage is a non sequitur. “The same hands” do not control more than one branch of government except when one branch dictates to the others how they must go about their constitutionally mandated duties, as Congress attempts to do when it sets about hamstringing the President’s control over the entities in his branch.

In particular, Congress

• cannot create a legislative agency, place it with the Executive Branch, and then tell the President he must do what that agency requires
• cannot create a judicial agency, place it within the Judiciary Branch, and then omit the judges from that oversight, leaving that task to the Executive) Branch—to the President
• cannot reach into either of those other branches and dictate to its chief how he must carry out any oversight
• must place an agency with judicial functions inside the judiciary branch and leave the entirety of oversight to the Chief Justice
• must place an agency with executive functions inside the Executive Branch and leave the entirety of oversight to the President
• must keep an agency with legislative functions inside the Legislative Branch. Only then can Congress specify how oversight must be carried out. Of course, a Legislative Branch agency would have no enforcement capability; that is the sole province of the Executive.

Congress exercises all the control over the Executive Branch it needs and is allowed to have via its constitutionally created ability to control the funds available to the Executive and any of his Departments and agencies, and through the oversight hearings it uses to inform itself of Executive Branch doings.