Shutting Down the “Fourth Branch”

December 12, 2025

By Ted Noel

Reprinted from American Thinker

During the oral argument over Trump v. Slaughter at the Supreme Court, Justice Elena Kagan got seriously exercised. “You’re asking us to destroy the structure of government!” Trump’s solicitor general, John Sauer, wisely declined to respond. She went on. “Where else have we so fundamentally altered the structure of government?” Indeed. The 1934 Humphrey’s Executor case did exactly that as the New Deal got into high gear during FDR’s reign.

The Constitution defines three, not four, branches of government. Article I defines all the bits and pieces about the legislative branch. In particular, Section 8 lists the things that Congress is allowed to do. Section 9 lists a potful of things Congress isn’t allowed to do. All these serve the purpose clause in Section 8, which declares that the list of enumerated powers are to provide for the common defense (for all the U.S.) and general welfare (for all citizens). Nowhere does it create a carve-out for people below a given income level, in a particular industry, or above a particular age.

Article II defines the Presidency and Article III creates the Supreme Court. Ultimately all the Inferior Courts are defined by Congress, and Congress even gets to tell the Court that it can’t rule on this or that. Articles IV-VII deal with other subjects, and don’t create any more branches of government.

The Necessary and Proper Clause (last clause of Article I, Section 8) gives Congress the power to do things that aren’t specifically listed in order to get the other stuff done. But the leftist Justices seem to want that language to allow Congress to do things that aren’t in the list of enumerated powers, ignoring the elephant in the room.

The key issue in Slaughter is the President’s right to fire Executive branch officials at will. Congress took that away with the creation of “independent agencies” that aren’t accountable to anyone. “Expert agencies” don’t answer to anyone, and Humphrey’s Executor wrote that in stone, ignoring the Constitution. This is the key protection for the Deep State. (And will probably go away, 6-3.)

Article II, Section 1, Clause 1 states “The executive Power shall be vested in a President of the United States of America.” The Constitution goes on to require the President to “take Care that the Laws be faithfully executed.” It doesn’t say that “independent agencies shall execute the laws.” That means that if Congress says that, “the President can’t fire the administrator of X agency without specific cause,” the President can completely ignore Congress. All Executive branch agencies are answerable to the Boss and no one else, because it’s exclusively his job to make sure the government follows the law.

You read that correctly. The Take Care Clause actually means that the President is obligated to ignore a statute limiting his power to fire some apparatchik if he thinks that bureaucrat isn’t doing his job the way the President thinks it should be done. Justice Kagan thinks this is awful. But the Constitution trumps Congress and any “independent agencies” it creates. When Congress created agencies with special protection from the President, Congress ignored the Constitution in an attempt to set up a completely unaccountable fourth branch of government. But Donald Trump not only has the constitutional power to get rid of the Swamp dwellers in the fourth branch, he has the duty to take care that the Constitution is observed. And therein lies the rub.

Those congressional abortions are a witch’s brew of interacting and overlapping functions. They invent federal power over pretty much everything. The agencies exert their power by writing rules that mimic Jabberwocky and then assess fines via Star Chamber courts where the agency that wrote the rules becomes judge, jury, and executioner. If an employer looks crosswise at an employee, the National Labor Relations Board will come down hard on him. But where does the Constitution give Congress the right to regulate labor? The Tenth Amendment leaves that power with the states. And where does it give Congress the right to tell a farmer which crop he can grow? Ditto. I could go on, but the enumerated powers cover taxation, borrowing money, regulating actual interstate commerce, naturalization, coinage, Post Offices, patents, courts, piracy, the military, the militia, and governing D.C. That’s the entire list. This examples I gave aren’t in the enumerated powers or implied by the Necessary and Proper Clause. Creating agencies for those ultra vires actions isn’t constitutional. Making them off-limits to the person the Constitution gives plenary powers really is a bridge too far.

When Trump wins in Slaughter, it’s likely that Humphrey’s Executor will be overruled. This means that the President will be able to fire anyone and everyone. As he said on The Apprentice, he likes to fire people. And when he fires lots of people, a potful of government programs will disappear because there will be no one to run them. And that will make a huge number of Democrats so sad. What will they do if they have to actually do productive work? And think of the money we’ll save!

And this brings us back full circle to the elephant in the room. The Department of Education is just the starting place. There’s no constitutional warrant for the Fed getting involved in education. (Go back and read that list.) We can argue that paying GI Bill education benefits is just another part of paying for the military, but the rest is out of bounds. And somehow we all got educated without D.C. bureaucrats meddling with our local schools. In other words, we will almost certainly not even notice when all those programs and agencies vanish into the ether.

A congressman’s Prime Directive is to “Do something!” Joe got a hangnail. Fix it with a government program. And on and on. Unless a President is willing to stand up and say “No!” Congress will make lots of laws to do things that the Constitution prohibits. And those wastes of taxpayer money will likely stay on the books because no one will have “standing” to challenge them in Court.

Fortunately, we have just such a President, and our VP is likely to keep the ball rolling when he is elected in 2028. But we still need a Congress that is willing to do something constructive by tearing down the administrative state. The Democrats may be the evil party, but so far, the Republicans have largely continued to be the Stupid Party.

Ted Noel is retired physician who posts on social media as Doctor Ted. His occasional Doctor Ted’s Prescription podcast is available on multiple podcast channels.