The upcoming SCOTUS cases over Trump's firing powers could change
America
This
latest iteration of a 250-year old debate goes much further than earlier
generations would have thought possible — or advisable. And, for paid,
subscribers: Closing my tabs.
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The
U.S. Supreme Court justices are coming back on Monday for a two-week sitting of oral arguments. Along
with the arguments scheduled for January, those two
sittings will include arguments in two cases addressing a key question of this
moment: Does Congress really matter any longer?
This has been a big shadow docket question all year — and Congress has
generally been pushed to the side — but upcoming arguments could lead to a
ruling that would significantly increase the executive’s power in a way that
seems to me to be fundamentally at odds with any historic understanding of how
the three branches of the federal government are supposed to work.
The
cases — one set for December 8 and the other for January 21 — are over
President Donald Trump’s effort to fire federal officials where Congress
specifically included language that became law under a past president
restricting the removal of officials in an effort to ensure that the entity
involved has some independence.
This
is not a new fight. In fact, the questions go back to “the heat of a
Philadelphia summer,” as Justice Clark McReynolds described the constitutional
convention of 1787 in a case about the president’s removal powers that was
before the justices 100 years ago. It was an issue that swept up the first
Congress as it decided how to establish the role of the person now called
“Secretary of State.”
Ninety
years ago, the fight was over the Federal Trade Commission.
Franklin
Delano Roosevelt was president and sought to remove William Humphrey as a
member of the FTC as of October 7, 1933. Humphrey resisted, and a lawsuit —
that continued after his death — ensued. The two questions before the court were whether the FTC
statute restricted Roosevelt’s removal authority and, if so, whether that
restriction was constitutional.
“The
commission is to be non-partisan; and it must, from the very nature of its
duties, act with entire impartiality,” Justice George Sutherland wrote for the court in Humphrey’s
Executor, noting, “It is charged with the enforcement of no policy except
the policy of the law. Its duties are neither
political nor executive, but predominantly quasi-judicial and
quasi-legislative. Like the Interstate Commerce Commission, its members are
called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’“
The
entire purpose for the FTC, Sutherland wrote, was the create “body which shall
be independent of executive authority, except in its selection.“ To that end, he
continued:
[I]t is clear that
Congress was of opinion that length and certainty of tenure would vitally
contribute. And to hold that, nevertheless, the members of the commission
continue in office at the mere will of the President, might be to thwart, in
large measure, the very ends which Congress sought to realize by definitely
fixing the term of office.
As
such, the statute restricted Roosevelt’s authority. Is that allowed? To answer
that, Sutherland had to look at what the FTC is:
The Federal Trade
Commission is an administrative body created by Congress to carry into
effect legislative policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform other specified duties
as a legislative or as a judicial aid. Such a body cannot in any proper sense
be characterized as an arm or an eye of the executive. Its duties are performed
without executive leave and, in the contemplation of the statute, must be free
from executive control.
Noting
that the Roosevelt administration’s argument would affect the Interstate
Commerce Commission and the Court of Claims, Sutherland concluded, “We think it
plain under the Constitution that illimitable power of removal is not possessed
by the President in respect of officers of the character of those just named.“
Congress’s
removal restriction was constitutional, and FDR lost. The court was unanimous.
In so
deciding, the court acknowledged that “[w]hether the power of the President to
remove an officer shall prevail over the authority of Congress to condition the
power … will depend upon the character of the office“ and that “there shall
remain a field of doubt“ as to roles neither “purely executive“ like the
Secretary of State and the FTC member at issue.
In
recent years, the Roberts court has pulled on that “filed of doubt,” striking down certain removal restrictions, while leaving the bipartisan,
multi-member independent agencies created by Congress to function as they have
since 1935.
Until
the second Trump administration. Trump has made an effort to end all
restrictions. Beginning in May, the Supreme Court has — on
the shadow docket — allowed Trump’s efforts to fire members of bipartisan
multi-member commissions to take effect during litigation, starting with
members of the National Labor Relations Board and Merit Systems Protection Board.
This continued over the summer, with members of the Consumer
Product Safety Commission. On September 22, the Supreme Court did so with
Trump’s attempt to fire Rebecca Kelly Slaughter.
Bringing
us to next week. The oral argument will be over Slaughter’s firing … as a
member of the Federal Trade Commission.
Yes,
the unanimous 1935 decision could be tossed out by the justices, and the
majority has all but said that they plan to do so — if for no other reason than
by way of their effort to suggest that, for some reason, the members of the
Federal Reserve Board might be treated differently than everyone else. That’s
the January argument — over Trump’s effort to fire Lisa Cook as a governor of
the Federal Reserve Board.
And
yet, despite it all, the silver lining here is that — while they could have
taken up one of those other cases — the Supreme Court, by taking Slaughter’s
case, will be making perfectly clear to everyone whether a majority of the
court is seeking to alter the balance of powers between the branches.
To
understand just how dramatic a change this is, I want to go back to a case from
a decade before Humphrey’s Executor, the case before the justices 100
years ago.
In
that case, Woodrow Wilson was president and fired a postmaster, Frank Myers. The question in
that case — which also continued after his death — was whether the Senate’s
restriction on removal of Myers without Senate approval was constitutional.
The decision by Chief Justice William
Howard Taft — the former president — sided with the presidency, with Taft
concluding that “the unrestricted power of removal of first class postmasters
[being] denied to the President … is in violation of the Constitution.”
In
dissenting, three justices — Justices Oliver Wendell Holmes, McReynolds, and
Louis Brandeis — wrote, and their words show just how far this discussion has
moved toward an expansion of executive power.
Holmes
put it simply:
We have to deal with an
office that owes its existence to Congress and that Congress may abolish
tomorrow. … The duty of the President to see that the laws be executed is a
duty that does not go beyond the laws or require him to achieve more than
Congress sees fit to leave within his power.
McReynolds
— the justice who wrote of the summer heat in Philadelphia — wrote an extensive
dissent. He detailed the powers of the legislative branch and the extensive
limits on the executive branch.
It is
an informative read, but I think two selections help clarify the shift that was
at issue then — and the substantially further shift toward executive supremacy
that overruling Humphrey’s Executor would represent.
“Concerning
the insistence that power to remove is a necessary incident of the President’s
duty to enforce the laws,” McReynolds wrote, “it is enough now to say: The
general duty to enforce all laws cannot justify infraction of some of them.”
In
other words, the president can’t “faithfully execute” laws by breaking them.
As to
removal specifically, McReynolds quoted Joseph Story, one of the early justices
of the Supreme Court, from his constitutional treatise.
“Indeed,
it is utterly impossible not to feel,” Story wrote, “that, if this unlimited
power of removal does exist, it may be made, in the hands of a bold and
designing man, of high ambition and feeble principles, an instrument of the
worst oppression and most vindictive vengeance.”
Sound
familiar?
The
question before the Roberts court in Slaughter and Cook’s cases will not be
whether they want to open America up to that possibility, given that Trump has
essentially said that is his purpose.
