The Supreme Court's conservative majority is on a mission to expand presidential power, and it's a controversial move that has many legal experts divided. This power play has been a long time coming, with Chief Justice John Roberts leading the charge since before Donald Trump's presidency.
The court is set to hear a case that could be a game-changer, potentially overturning a 90-year-old decision that limits the president's authority to remove certain officials. Justice Elena Kagan has already noted the conservatives' eagerness to take this action.
Trump, during his second term, has been allowed to fire almost anyone he desires, despite a 1935 ruling in Humphrey's Executor that prohibits the president from removing the heads of independent agencies without cause. This includes officials like Rebecca Slaughter, whose dismissal from the Federal Trade Commission is at the heart of the current case.
However, not everyone has been so lucky. Lisa Cook, a Federal Reserve governor, and Shira Perlmutter, a copyright official, have managed to hold onto their positions, but the court has already hinted at a different approach for the Fed. Trump has expressed his desire to remove Cook due to mortgage fraud allegations, which she denies.
The case before the Supreme Court revolves around the same agency, the FTC, as the 1935 decision. Back then, the justices ruled that presidents, including Democrat Franklin D. Roosevelt, could not fire appointed agency leaders without cause. This decision led to the establishment of powerful independent federal agencies responsible for regulating various aspects of society.
Proponents of the unitary executive theory, a conservative legal movement, argue that this modern administrative state misinterprets the Constitution. They believe that federal agencies within the executive branch should answer solely to the president, including the ability to fire their leaders at will.
Justice Antonin Scalia, in a famous 1988 dissent, emphasized this point, stating, "this does not mean some of the executive power, but all of the executive power."
Under Roberts' leadership, the Supreme Court has consistently chipped away at laws that restrict the president's firing power since 2010. In 2020, Roberts wrote that "the President's removal power is the rule, not the exception," upholding Trump's firing of the Consumer Financial Protection Bureau head despite similar job protections to Humphrey's case.
Roberts' stance on the unitary executive has faced criticism from legal historians and even proponents of the originalism approach favored by conservatives. Caleb Nelson, a University of Virginia law professor and former law clerk to Justice Clarence Thomas, wrote that "both the text and the history of Article II are far more equivocal than the current Court has been suggesting."
Jane Manners, a Fordham University law professor, submitted briefs to the court, providing historical context that could lead to a revision of the court's views. She said, "I'm not holding my breath."
Slaughter's lawyers are embracing these historical arguments, asserting that limits on Trump's power are consistent with the Constitution and U.S. history. The Justice Department, on the other hand, argues that Trump can fire board members for any reason to carry out his agenda, and that the precedent should be discarded.
Solicitor General D. John Sauer wrote, "Humphrey's Executor was always egregiously wrong."
The case also raises a second question that could impact Cook, the Fed governor. If a firing is deemed illegal, the court wants to decide whether judges have the power to reinstate someone. Justice Neil Gorsuch has suggested that fired employees who win in court can likely receive back pay but not reinstatement, which could affect Cook's ability to keep her job.
The justices seem cautious about the economic uncertainty that could arise if Trump can fire central bank leaders. The court will hear separate arguments in January regarding Cook's ability to remain in her position while her case challenging her firing proceeds.
This case is a crucial moment in the ongoing debate over the balance of power between the executive and independent agencies. It's a complex issue with far-reaching implications, and the Supreme Court's decision will undoubtedly shape the future of presidential authority.
