The Supreme Court appears ready to blow up a 90-year-old precedent

Any slight chance that the US Supreme Court will not strike down independent agencies in Trump v. Slaughter and allowing the president to fire officials for any reason appeared to disintegrate during arguments in the case Monday.

The six conservatives on the court appeared openly to side with President Donald Trump, willing to rule to eliminate for-cause removal protections for officials at independent agencies that have structured the entire federal government for at least more than 90 years.

The 1935 precedent that affirmed the for-cause removal protections at the center of the Humphrey Executioner case is a “dry shell,” Chief Justice John Roberts said, 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 theory of the unitary executive, which says that Congress cannot restrict the president’s power over the entire executive branch. It will mark a complete reshaping of the administrative state that was created beginning in the late 19th century and throughout the 20th century.

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

The case arose from Trump’s purges of independent agency officials appointed by Democrats after he took office in January, including FTC Commissioner Rebecca Slaughter, whom Trump fired in March. Slaughter challenged his dismissal based on Humphrey’s Executor precedent, which required that officials in such independent agencies could only be fired “for good 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.’”

Conservative justices will almost certainly agree. In addition to Roberts calling Humphrey’s a “dry shell,” both Justices Neil Gorsuch and Clarence Thomas scoffed at the claim in Humphrey that independent agencies exercised “quasi-legislative” and “quasi-judicial” powers.

And rather than worrying about the dangers that will arise from handing the president all power over every independent agency, against the will of Congress, conservatives raised concerns that Congress could transform the entire executive branch into multi-member independent agencies with removal-for-cause protections and steal all executive power from the president.

J. Scott Applewhite via News

Of course, this hypothesis could have been put forward over the last 90 years since Humphrey’s Executioner. But it never came up, because Congress never tried to do it.

The real danger is what will happen when the president is given full powers over agencies that were created by Congress to be independent of direct presidential control. This change “would destroy the structure of government,” said Justice Sonia Sotomayor.“[and] “Take away Congress’s ability to protect its idea that the government is better structured with a few agencies that are independent.”

The logic presented by the Trump administration that all executive power rests with the president and therefore he should have the authority to direct all executive branch agencies as he wishes has unprecedented implications that go far beyond protections from removal for cause. Could involve breaches of Article III courts such as the tax court, the bankruptcy court and the War Claims Commission, and the protections afforded to the entire public administration.

“I don’t see how you could limit their logic,” Sotomayor said.

Attorney General D. John Sauer did little to assuage these concerns simply by stating that the administration is not questioning those things in this case.

“Not yet,” Sotomayor noted.

Justice Samuel Alito attempted to help Sauer by asking him what the court would say to limit the decision only to without-cause removal protections for multi-member commissions. But Justice Elena Kagan pointed out the absurdity of this.

“Our logic has consequences,” Kagan said. “Once you use a particular type of argument… you can’t turn your back on that argument if it justifies something else in exactly the same way.”

That logic also puts the Federal Reserve squarely in the crosshairs. The central bank regulator is, like the FTC, an independent agency located in the executive branch that Congress created with cause-for-cause removal protections for its Board of Governors. But Sauer argued that the court should exempt the Federal Reserve because it is “a quasi-private entity with a unique structure that follows a distinct historical tradition.” Sauer’s statement echoed the conservative judge’s words when they stayed a lower court decision in Trump v. Wilcox in May.

This, however, runs counter to the argument that all executive power is in the hands of the president, Kagan said. Why exclude only the most important delegation of power in the Federal Reserve’s ability to set interest rates from presidential direction?

“If you think that [all executive power is vested in the president]the fact that you can say, ‘Well, this has a history and that has a tradition,’ doesn’t do much to justify the fact that you’re asking the court to agree,” Kagan said. “So once you’ve gone down this path, it’s a little hard to see how to stop.”

That concern also applies to courts not governed by Article III: those located in the executive branch, Kagan said. Any “determination” in these courts “must be made court by court,” Sauer said. He also asked the court to overturn the 1958 precedent in Weiner v. US that authorized deportation protections for officials who were part of these executive branch courts.

But Roberts seemed inclined to preserve at least some independence for non-Article III courts as he sought to clarify differences in the outcome of overturning the Humphreys and Weiner rulings.

“I guess there’s a difference between Humphrey’s and Weiner’s, right?” Roberts said. “In terms of whether you override one or override the other, in terms of the consequences with respect to modern agencies.”

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

“Isn’t it problematic, given what we know about the Founders’ vision, that we are not only putting all executive power in the executive, but also 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 exercising legislative and judicial powers could be resolved by expanding the case beyond just-cause removal protections and the court’s ruling that independent agencies exercising regulatory and judicial powers are themselves completely unconstitutional.

But the real long-term outcome 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 policies or regulations that address issues of great economic or political importance that Congress did not explicitly direct the executive branch to issue.

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

Raising the Major Questions Doctrine, Kavanaugh explained how ending just-cause removal protections will work. Republican presidents will be allowed to enforce deregulatory measures through autocratic authority over independent agencies, but Democratic presidents who can use that autocratic power to direct the enactment of new regulations will be overthrown.

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