SCOTUS’s GOP justices are about to hand Trump way more power

Oral arguments at the Supreme Court on Monday over the president’s power to remove the commissioners of independent agencies left little doubt that its Republican-appointed justices are about to fundamentally reorder our system of government. They appear ready to eliminate most pockets of expertise and nonpartisanship that we rely on as stewards of important economic, political, scientific, and regulatory power.

They will do this, if this morning’s arguments are any indication, without grappling with the predictable and disastrous fallout, with the endpoint of their own logic, or the historical record to the contrary. Instead, the six Republican appointees appear ready to race headlong into a Trumpian future in which no agency or decision is beyond the reach of the precedent’s political cronies. 

“You’re asking us to destroy the structure of government,” Justice Sonia Sotomayor observed Monday, “and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.”

FTC Commissioner Rebecca Slaughter, a Trump and Biden appointee whose case is now before the court, sued after Trump fired her in March for not aligning with his agenda, despite his being prohibited from removing commissioners except for “inefficiency, neglect of duty or malfeasance in office.”

Slaughter’s case hearkens to the earliest days of the republic, when Congress first created independent agencies with limits on the president’s ability to remove the commissioners who run them. In their modern incarnation, beginning in the late 19th century, Congress has placed these agencies under the direction of a bipartisan group of commissioners who serve set, staggered terms and can only be removed for cause. The goal is to create expertise and independence, so that some of the government’s work is insulated from the abusive pull of political decision-making.

In 1935, a unanimous Supreme Court upheld the for-cause removal protections for independent agency commissioners in a ruling known as Humphrey’s Executor. But since taking office in January, Trump has removed the Democratic commissioners from several of these agencies, in violation of the Humphrey’s Executor precedent and multiple laws, seeking to eliminate their independence. He’s fired Democratic commissioners of the National Labor Relations Board, the Merit System Protection Board, the Consumer Product Safety Commission, and the FTC’s Slaughter.

It wasn’t a mystery where this case was headed. For years, the Roberts Court has sought to weaken and undermine Humphrey’s Executor, to reshape the federal government as a quasi-monarchical institution in which the president controls everything in the executive branch. This goal is intellectualized through the unitary executive theory, an invention of Ronald Reagan’s administration—in which Roberts and Justice Samuel Alito both served—to arrogate more power to the White House when Democrats had an unshakeable hold on Congress.

This year, the GOP wing of the court has been so eager to overturn Humphrey’s Executor that it actually couldn’t wait for the chance to issue a decision to render the precedent a nullity in practice. Thus, since Trump began firing Democratic commissioners, in January, the Supreme Court has repeatedly stepped in to allow those firings to take effect while the litigation over them proceeds, even though the firings clearly violated both the law and Humphrey’s Executor. 

Despite the obvious direction this court was moving, it was still unsettling to hear six justices completely unwilling to acknowledge and wrestle with the consequences of overturning a 90-year-old precedent that acts as a pillar of the separation of powers that endeavors to protect key government functions from the corrosive effects of partisan politics.

Take this exchange between Justice Elena Kagan, Solicitor General John Sauer, and Alito. Kagan began by pressing Sauer on the logical consequences of his argument that all the executive power rests with the president, such that he must be able to remove anyone engaged in executive branch functions. What about courts set up by Congress—separate from federal courts under the federal judiciary—such as the Tax Court and the Court of Federal Claims? What about civil servants and government employees?

Sauer demurred that laws protecting civil servants and other employees haven’t been challenged—yet.

“I know you haven’t challenged it,” Kagan responded. “It’s really, the question is, ‘Where does this lead? What does it take you to, given what your primary rationale is?”

Then Alito piped up to suggest that maybe the court could just blow up our system of government without thinking through these pesky details.

“Suppose we were to decide this case in your favor without reaching some of the agencies that have been mentioned, like the Tax Court and the Claims Court and the Court of Appeals for the Armed Forces,” Alito asked Sauer. “What would you propose that we say so as to reserve decision on those agencies?” Sauer happily responded that the court could simply say that it was withholding judgement on them.

An exasperated Kagan jumped back in. “Our logic has consequences,” she said. “Once you use a particular kind of argument to justify one thing, you can’t turn your back on that kind of argument if it also justifies another thing in the exact same way. And so, putting a footnote in the opinion saying we don’t decide X, Y and Z, because it’s not before us, doesn’t do much good if the entire logic of the opinion drives you there.”

This is actually the whole problem in a nutshell. The majority does not really think it is bound by its own logic. Next month, the Court is going to decide whether Trump can remove a governor of the Federal Reserve Board, a removal that could spook the markets and have more immediate and disastrous economic consequences than his takeover of the FTC.

And so the court appears poised to allow the president to take over the agencies it wants to transform into political entities, and preserve the independence of the ones it wants to keep independent, and use words like “uniquely structured” and “distinct historical tradition” to pretend this isn’t a consequentialist, results-driven exercise in hackery. On the other hand, if the justices want to embrace the logic that civil service laws violate the president’s executive power, then it will continue in this vein until it has replaced all experts and meritorious hires with cronies and nepo babies. 

Just as the Republican justices avoided this logical incongruity, they also avoided the consequences of reordering some of the government, from an arrangement in which experts, scientists, and bipartisan commissions control at least some sensitive and technical decision-making to one in which political favoritism and corruption rule. Jackson pushed that issue repeatedly at oral argument.

“My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts,” she said. “So having a president come in and fire all the scientists and the doctors and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything, is actually not in the best interest of the citizens of the United States.”

Relatedly, Jackson continued, why should the president’s desire to control everything take precedence over Congress’ judgment that some functions should be run by independent agencies? “Given the history of the monarchy and the concerns that the Framers had about a president controlling everything,” she asked, why shouldn’t Congress’ judgment prevail?

Jackson returned repeatedly to the idea that Congress has the authority to create independent agencies, as well as to the idea that Congress oversees them. Justice Amy Coney Barrett portrayed independent agencies as “not answering to either the President or to Congress”; Justice Brett Kavanaugh called them “unaccountable” and worried that they cause “real-world problems for individual liberty,” though he didn’t name any. Sauer alleged a “power vacuum” in which independent agency commissioners exercise enormous control without answering to the president. 

“I really don’t understand why the agencies aren’t answering to Congress,” Jackson said. “Congress established them and can eliminate them. Congress funds them and can stop. So to the extent that we’re concerned that there’s some sort of entity that is out of control and has no control, I guess I don’t understand that argument.”

Indeed, the entire oral argument was infused with contempt for Congress’ authority and democratic legitimacy. The Republican-appointees prefer to give the president unlimited power than to allow Congress to create the agencies it sees fit; and they see Congressional oversight not as part of its constitutional function but as a problem. 

Finally, though the conservative justices have spent decades touting their originalist methodology—which seeks the answer to constitutional and statutory questions in historical analogues and the Constitution’s original public meaning—they almost completely ignored the actual history of independent agencies. Since the Roberts Court began to move rapidly toward the unitary executive theory, historians and legal scholars have gone back to the archives to see whether there’s actually historical evidence for eliminating independent agencies and giving the president unfettered removal power. It turns out there are lots of historical examples of independent agencies and restrictions on presidential removals going back to the Founding era—as multiple amicus briefs in this case laid out. 

“Independent agencies have been around since the founding,” Sotomayor said. “The Sinking Fund, the War Commission—we’ve had independent agencies throughout our history. So this is not a modern contrivance.”

But the conservatives saw our status quo—in effect, in some form, for 250 years—as the real threat. Chief Justice Roberts, for example, worried that Congress might get power-hungry and decide to transform federal agencies like the Department of Education into independent agencies run by independent commissioners. That example is far-fetched at the moment: Congress created the department and now is sitting idly by as Trump unilaterally dismantles it. Nevertheless, this seemed a bigger worry for the conservative bloc than the actual, predictable consequences of letting Trump get his hands on every pocket of independence: further self-enrichment, retribution, chaos, and the other tragedies that stem from clowns running the circus.

This is what it looks like when Supreme Court justices are completely unburdened by history, the logical conclusions of their own reasoning, and the real-world consequences of their own actions. And we are all along for the ride.