R.J. Pestritto is right that the removal fight matters. If the president cannot fire executive subordinates, it becomes difficult to see how he can “take Care that the Laws be faithfully executed.” But Pestritto also says near the end of his essay that removal is only a first step, and he cautions against merely substituting judicial power for administrative power. That’s the point I want to pull forward here: restoring presidential control over the executive branch alone does not cure an unconstitutional delegation and a fusion of powers. We need to address the fact that most of the administrative state has no constitutional warrant—and also that restoring such awesome power to the president absent greater reforms might in fact do more harm than good.

The Trump Administration is asking the Supreme Court to overturn its decision in Humphrey’s Executor v. United States (1935), which held that Congress could limit the president’s power to remove members of “independent regulatory commissions.” In that case it was the Federal Trade Commission, but the principle has been applied to others like the National Labor Relations Board, the Equal Employment Opportunity Commission, the Federal Communications Commission, and, biggest of all, the Federal Reserve.

Trump is asserting what has come to be called the unitary executive theory. Its proponents (let’s call them the unitarians) emphasize that the Constitution says that “the executive Power shall be vested in a President of the United States.” It does not say “some executive power” or that executive power shall be vested in “a president and whomever else Congress chooses to vest it.” If the president is to meet his constitutional duty to “take Care that the Laws be faithfully executed,” he needs to be able to hold his subordinates accountable.

Apart from a few Civil War-era anomalies, the president’s plenary removal power prevailed from the first Congress until 1887, when Congress created the Interstate Commerce Commission, which is usually seen as the first independent agency. Congress created many more of these, especially the “alphabet soup” agencies of the New Deal (the AAA, PWA, WPA, and CCC; just about any three-letter combination will yield a federal agency). After the Court sustained its independence in Humphrey’s Executor, President Franklin D. Roosevelt’s Committee on Administrative Management in 1937 called for an end to “a headless fourth branch of government, a haphazard deposit of irresponsible power. They do violence to the basic theory of the American Constitution that there should be three major branches of government and only three.” Unitarianism joined Trinitarianism in orthodox constitutionalism.

The Court should overrule Humphrey’s Executor and restore the unitary executive. But that’s not enough. The more important constitutional point is that Congress has no power to create these agencies in the first place. Even if under presidential control, they still violate the Constitution’s separation-of-powers principle. That was a point made by none other than the author of Humphrey’s Executor, Justice George Sutherland. As a senator in 1914, Sutherland said that Congress could not confer legislative and judicial powers upon the FTC, calling the act “utterly void.” Many other senators saw the same problem, as did many conscientious congressmen who considered the Interstate Commerce Commission. As James Madison put it in Federalist 47, “[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.”

More recently, administrative law professor Gary Lawson described the fusion of powers in the bureaucratic state:

Consider the typical enforcement activities of a typical federal agency, for example, of the Federal Trade Commission. The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters of fact and of law.

In Humphrey’s Executor in 1935, however, Sutherland wrote the unanimous opinion that insulated the independent regulatory commissioners from presidential removal. He opined that the commission was not an executive agency under the president. Rather, it exercised what Sutherland now called “quasi-legislative” and “quasi-judicial” powers. It is hard to explain why Justice Sutherland saved the commission that Senator Sutherland had called “utterly void” 20 years earlier.

He has been accused of wanting to spite FDR and thwart his ability to control the new administrative state. Liberals in 1935 favored the unitary executive when the executive was one of theirs. Today they dread it because the executive is Donald Trump. Progressives cheered the growth of presidential power for decades, but when Richard Nixon became president they shrieked about “the imperial presidency.”

It may also be that Sutherland trusted the courts to keep the agencies within constitutional bounds. The Court, which Sutherland joined in 1922, did exactly this to the FTC in the 1920s, and threatened to do the same to the New Deal agencies in the 1930s. Ironically, Humphrey’s Executor, among other decisions, so enraged FDR that he concocted his plan to pack the Court in 1937. Congress became so alarmed at FDR’s assertion of executive power that it defeated not only the court-packing plan but also Roosevelt’s Committee on Administrative Management’s proposal for a unitary executive.

The removal question (who controls these agencies) is much less important than the question of what these agencies do. They are making and enforcing laws that the federal government has no constitutional power to make, which is equally true of non-independent agencies like the Departments of Agriculture, Education, and Health and Human Services. And the answer is not to shift the same unconstitutional power from administrators to judges under the banner of “review” while leaving the bureaucratic regime intact.

Congressional delegation of legislative power is bad enough—but it’s worse when Congress delegates power it does not possess in the first place. The regulation of labor-management relations, for example, belongs to the states, but Congress usurped this power when it created the National Labor Relations Board. The Court’s acceptance of the NLRB in 1937 was the real turning point in the constitutional revolution of the New Deal.

Restoring the unitary executive should be the first step toward restoring constitutional limits to federal power. Ultimately, we must put the genie back into the bottle of enumerated powers.