Supreme Court Seems Ready To Blow Up The Government And Hand Trump Autocratic Power

Any tiny chance that the U.S. Supreme Court might not kill off independent agencies in the case of Trump v. Slaughter and allow the president to fire officials for any reason appeared to disintegrate during arguments in the case on Monday.

The six conservatives on the court seemed to openly side with President Donald Trump, ready to rule to eliminate the for-cause removal protections for independent agency officials that have structured the entire federal government for at least 90-plus years.

The 1935 precedent that affirmed for-cause removal protections at the center of the case, Humphrey’s Executor, is a “dried husk,” Chief Justice John Roberts stated, noting that the agency at issue in that case, the Federal Trade Commission, has increased its power since then.

Such a decision will fully establish the unitary executive theory, which says that the president’s power over the entire executive branch cannot be restrained by Congress. It will mark a complete remaking of the administrative state that was created beginning in the late 19th century and through the 20th century.

Without for-cause removal protections, the president will be able to direct all rule-making and adjudicatory functions of independent agencies like the FTC, Federal Communications Commission, National Labor Relations Board, Nuclear Regulatory Commission or the Federal Energy Regulatory Commission by firing officials who do not carry out his will. With that authority, the president will be able to seize autocratic power over these regulatory bodies, with the power to direct them to help his friends and against his enemies and to order deregulatory actions for favored industries.

The case emerged from Trump’s purges of independent agency officials appointed by Democrats after he took office in January, including FTC commissioner Rebecca Slaughter, who Trump fired in March. Slaughter challenged her removal under the precedent of Humphrey’s Executor, which required that officials of these kinds of independent agencies could only be fired “for cause,” and not simply because the president wanted to fire them. Trump appealed to the Supreme Court, arguing that the court’s recent opinions show that “the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’”

The conservative justices are almost certain to agree. In addition to Roberts calling Humphrey’s a “dried husk,” both Justices Neil Gorsuch and Clarence Thomas mocked the holding in Humphrey’s that independent agencies exercised “quasi-legislative” and “quasi-judicial” powers.

And instead of worrying about the dangers that will flow from handing the president all power over every independent agency, against the will of Congress, the conservatives raised the concern that Congress could transform all of the executive branch into multimember independent agencies with for-cause removal protections and steal away all executive power from the president.

Of course, this hypothetical could have been raised over the past 90 years since Humphrey’s Executor. But it never came up, because Congress never attempted to do this.

The actual danger at hand is what will happen when the president is given full power over agencies that were created by Congress to be independent from direct presidential control. This change would “destroy the structure of government,” Justice Sonia Sotomayor said.

The logic presented by the Trump administration that all executive power is vested in the president and therefore he must have authority to direct all executive branch agencies as he wishes has unprecedented implications far beyond for-cause removal protections. It could implicate courts such as the tax court, bankruptcy court and military commissions, and the protections granted to the entire civil service.

“I don’t see how your logic could be limited,” Sotomayor said.

Solicitor General D. John Sauer did little to assuage these concerns by merely stating that the administration isn’t challenging those things in this case.

“Not yet,” Sotomayor noted.

Justice Samuel Alito tried to help Sauer by asking him what he would have the court say to limit the decision just to for-cause removal protections for multimember commissions. But Justice Elena Kagan pointed out the absurdity of this.

“Our logic has consequences,” Kagan said. “Once you use a particular kind of argument … you can’t turn your back on that argument if it justifies another thing the exact same way.”

Kagan also argued that granting the president this unfettered power over the entire executive branch, where Congress has delegated some legislative and judicial power to independent agencies, is antithetical to the original design of the government.

“Isn’t it problematic, given what we know about the Founders’ vision, that we’re not only putting all executive power in the executive but an incredible amount of legislative and judicial power in the president?” Kagan asked.

Justice Neil Gorsuch suggested that the liberal justices’ concerns about an all-powerful executive wielding legislative and judicial powers could be resolved by expanding the case beyond for-cause removal protections and the court rule that independent agencies exercising regulatory and adjudicatory powers are themselves entirely unconstitutional.

But the real long-term result of the case was best articulated by Justice Brett Kavanaugh, who praised the court’s recent articulation of the Major Questions Doctrine. That doctrine limits the ability of presidents and executive agencies to issue policy or regulations that strike at questions of vast economic or political significance that Congress did not explicitly tell the executive branch to issue.

Kavanaugh noted that broad delegations of power by Congress to “unaccountable agencies” are a big problem, but they can be resolved with the Major Questions Doctrine. Sauer agreed, but stated that the doctrine does not resolve the issue of for-cause removal protections.

By raising the Major Questions Doctrine, Kavanaugh laid out how ending for-cause removal protections will work. Republican presidents pursuing deregulatory action through autocratic authority over independent agencies will be allowed, but Democratic presidents who might use such autocratic power to direct the enactment of new regulations will be struck down.

And in the short term, Trump will be authorized to advance his authoritarian project even further.