U.S. Supreme Court Associate Justice Amy Coney Barrett, Justice Brett Kavanaugh and retired Justice Anthony Kennedy attend U.S. President Donald Trump's address to a joint session of Congress at the U.S. Capitol (REUTERS)
Slate Senior writer Mark Joseph Stern says the Supreme Court is gearing up to hand President Donald Trump kinglike firing powers over independent federal agencies in Trump v. Slaughter, peddling the false argument that the Constitution gives the commander in chief absolute control over the executive branch.
The argument from conservatives on the court is that this supreme power is rooted in tradition, but “they are wrong in every conceivable way,” said Stern.
“Their pop-historical account of the Constitution has been debunked from top to bottom by legitimate legal historians, who have refuted the rotten moorings of this bogus theory with devastating precision. And yet there is no real question that the Supreme Court’s Republican-appointed justices will endorse it anyway in Slaughter, handing Trump sweeping new authority to abuse his office in direct violation of federal law,” said Stern. “This near-inevitable ruling confirms the most stinging critique of originalism: It allows judges to align constitutional meaning with the Republican Party’s preferences, disregarding evidence that contradicts their desired outcome.”
When Congress created the FTC in 1914, it allowed the president to fire commissioners only for “inefficiency, neglect of duty, or malfeasance in office.” Lawmakers wanted a panel of experts insulated from partisan pressure who would act in the best interest of the American people rather than promote the president’s ambitions. And in 1935 the Supreme Court unanimously upheld these good-cause protections against removal in a landmark decision called Humphrey’s Executor.
Leaders at more than two dozen multimember agencies are, for now, shielded against presidential termination by statute, giving people like Federal Reserve Chair Jerome Powell independence from Trump, no matter how hard Trump boasts of wanting to remove him.
But when Rebecca Slaughter, a Democratic member of the Federal Trade Commission, sued over her firing lower courts reinstated her SCOTUS overruled them by a 6–3 vote through the shadow docket, without argument or debate. Stern said these six justices did the same when other agency leaders sued for their jobs. Then the conservative supermajority scolded lower courts for failing to accept that Trump’s removals were now endorsed and legitimized by the Supreme Court.
The Republican-appointed justices want Trump to be king because all six are deeply committed to the “unitary executive” theory, an idea that Stern said is foundational to the modern conservative legal movement.
“The premise of the theory is that the president does not merely lead the executive branch; he is the executive branch, because the Constitution vests the ‘executive power’ in him alone,” said Stern. “Agencies like the FTC and the NLRB ostensibly exercise this power by interpreting and enforcing the law. But under the Constitution, they may do so only on the president’s behalf. And so if the president disagrees with officers leading these agencies, he must be able to fire them at will. Any impediment to this ‘removal power’ unduly restricts the commander in chief’s inherent authority.”
But the actual text of the Constitution says none of this, Stern adds. There is no “removal clause,” nor any definition of “executive power” that implies total dominion over the executive branch.
“… [James] Madison acknowledged that some executive branch officials could be shielded from termination. So did Alexander Hamilton, who argued that the president could not fire executive officers without the consent of the Senate. So did Chief Justice John Marshall, who arguably did more in this period than any of his contemporaries to shape constitutional interpretation,” Stern said.
The fact that the first Congress enacted an independent agency, the Sinking Fund Commission, to manage repayment of the nation’s debt and the president was unable to fire several of its members alone “reveals that many of the men who wrote the Constitution did not think that it gave the president unlimited authority to fire high-ranking federal officials,” said Stern.
“Now Trump wants the Supreme Court to say that Madison, Hamilton, Marshall, Story, and all the rest were wrong. He wants the justices to give him the unprecedented authority to seize control of the FTC, the NLRB, and other independent agencies by sacking their Democratic members,” said Stern.
Read the Slate article at this link.
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