During oral argument in Trump v. Slaughter, Justice Barrett asked Solicitor General Sauer a series of questions about the relationship between the legislative veto and independent agencies. Barrett recalled that Justice Gorsuch had raised Chadha during the oral argument in the tariff case. (I suspect Barrett is also considering a draft opinion that Gorsuch may have circulated.) Gorsuch said that Congress delegated power to the executive branch through IEEPA, subject to a legislative veto. But Chadha wiped out that check, leaving the executive with even broader authority. Would Congress have delegated such broad powers in the first place absent the veto? Probably not. Gorsuch suggested that Chadha changed the legislative "bargain."
Here, Barrett asked about whether a legislative veto may have also been part of the legislative bargain for the FTC and other independent agencies. In other words, she said, "part of the reason Congress was willing to infuse agencies with a lot of the broad powers" was because of the availability of the veto. She asked if the original 1935 FTC Act had a legislative veto, and if so whether that veto was "part of the bargain." If there was such a veto, Barrett suggested, Congress would have retained "some measure of congressional control," though short of removal. Barrett said, "And if you had a legislative veto, even if Congress wasn't exerting itself the authority to fire . . . a member [of] a multi-member board, it could override decisions that the agency made." (I think Bowsher would prohibit Congress from having any power over removal, other than impeachment, but that is another matter.)
After Chadha, however, the "bargain was changed." Barrett said, Congress "having lost that check, maybe these independent agencies have become something that Congress didn't intend or anticipate even at the point that it set it up." Barrett then connected this case back "the point that Justice Gorsuch made in the tariff argument with respect to IEEPA."
