Supreme Court allows Trump to say ‘you’re fired’ to meddling bureaucrats
On Monday, Donald Trump sealed one of the most lasting parts of his legacy. In Trump v. Slaughter, the Court reaffirmed and reinforced the authority of presidents to determine who will carry out the functions of the Executive Branch. In so doing, the Court overruled one of the long-standing limits of presidential power in Humphrey’s Executor v. United States.
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Humphrey’s Executor is hardly a household name. Yet the demise of the 1935 case represents a seismic shift in the balance of power within our constitutional system.
In this case, the court decided that President Trump had the right to fire Rebecca Slaughter, a commissioner of the Federal Trade Commission.
For decades, scholars and jurists have questioned where the Court found the authority for Congress to create a hybrid creature like the FTC — part legislative and part executive, with officials protected from removal by a president.
Various presidents have chafed at this limiting doctrine. But Trump pushed aggressively against the precedent and appointed three justices who would prove critical in ending Humphrey’s Executor after more than 90 years.
In a separate case, Trump v. Cook, the Court ruled that the president could not fire Lisa Cook, a member of the Federal Reserve’s Board of Governors.
Both the win and the loss were vintage Trump. The win because he was unrelenting in his assertion of inherent powers.
The loss in part because he is equally unrelenting in his use of social media to carry out policy.
Chief Justice Roberts wrote that more than a tweet and conclusory letter is demanded in such a removal from the Federal Reserve, which has always held a unique position in the government and prior cases.
Roberts wrote, “would in effect transform the Federal Reserve’s for-cause protection into at-will employment — an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference.”
That does not mean that Cook cannot be replaced, but it requires due process, not a “thank you for your attention.”
It is hard to overstate the transformation of the new executive branch during the Trump terms.
The Slaughter case follows the Loper Bright decision, which ended the huge deference given to government agencies “interpreting” law to their own ends.
Past Republican presidents have criticized the ““administrative state” that was iron-plated under the prior Chevron doctrine.
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The result is that our government will remain markedly different from that of many of our allies, particularly the United Kingdom. In the UK, ministries operate with a considerable degree of independence and insularity. It is difficult for a prime minister to force through major changes when opposed by ministry civil servants.
The United States has long maintained that our elections have consequences and that presidents should be able to carry out the mandates of voters.
Trump came to power with a pledge to transform our government by making it smaller and more responsive, as well as to carry out sweeping reforms in areas such as immigration enforcement. He was stymied by lower courts imposing dozens of injunctions and even federal officials who gummed up the works.
The Court has cleared much of that away for the president, and he carried out a wholesale house cleaning of agencies.
It is important to remember that what is good for the goose is good for the gander. If the next president is a Gavin Newsom or a Kamala Harris, the same powers will be used to reverse these policies.
The greatest danger, however, is the pledge of Democratic leaders to make the one impulsive change that could endanger the entire enterprise.
Various Democrats have called for packing of the Court with an instant liberal majority. Such a move would destroy an institution that has served as a critical moderating element in our constitutional system for 250 years.
Of course, Democrats did not balk at the Court reversing long-standing precedent when the results aligned with their views. Now, they would pack the Court to force through an agenda currently considered unconstitutional, including reversing many of the decisions in the last 10 years.
The truth is fully on display this week. This Court has exercised considerable independence. That includes repeatedly ruling against, and being repeatedly denounced by, this president.
The great philosopher Alexis de Tocqueville described this country as “a land of wonders, in which everything is in constant motion and every change seems an improvement.”
We will remain an impatient people, but the only thing that should not change is the constitutional framework for change, including the institutional integrity of the Court itself.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.“
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