A Ludicrous New Supreme Court Decision Could Grant Trump Presidential Power Not Seen Since King George III

Dammit. It took less than three hours. On Thursday, I had just complimented Justice Amy Coney Barrett for “becoming interesting” by recusing herself from a Supreme Court decision that would have allowed Oklahoma to use public money to help establish a religious charter school. Because Barrett recused herself, apparently because she had connections to one of the parties to the case, the court split 4–4, which meant that a lower-court decision blocking the use of the money would stand.

My optimism about Barrett was short-lived. Later on Thursday, she jumped back into the shadow docket so as to resume her place in the carefully cultivated conservative majority on the court. She joined in a decision that moved the president a big step toward becoming a de facto king, just the way the losing side at the Constitutional Convention feared one of them might.

In the decision in the case of Trump v. Wilcox et. al., the court ruled that the president’s firing of the heads of executive agencies created by Congress should stand while their cases are adjudicated even though, by congressional mandate, only Congress can dismiss them.

The decision is ludicrous and dangerous. It overrules a century-old precedent without mentioning the controlling case at all. (In her dissent, Justice Elena Kagan blows the whistle on them.) The decision is a clear indication that the court is prepared to toss out the 1935 case called Humphrey’s Executor, in which case the idea of an independent agency created by Congress within the executive branch would be dead.

(In an earlier decision, the court left the door open to narrowing the precedent while not overturning it.)

This would leave us, at best, with something resembling the federal government before civil-service reform and, at worst, something resembling the colonial government before the Boston Tea Party. It essentially would give us a unitary executive without declaring one. As Justice Kagan put it in her dissent:

The impatience to get on with things—to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go.

Kagan also mercilessly mocked the exemption for the Federal Reserve board that the majority had invented out of whole cloth—largely, one suspects, because even they don’t want El Caudillo del Mar-a-Lago to lard the Fed with his cronies, which would enable him to sink the economy even further into the ditch.

But then, today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s. So the majority has to offer a different story. … One way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s. ... Today’s order favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making. I would deny the President’s application. I would do so based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history.”

During the debates over the ratification of the Constitution, an anti-Federalist writing as An Old Whig in the Philadelphia Independent Gazetteer expressed concern about the concentration of power in the presidency.

To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a king as much a King as the King of Great Britain, and a King too of the worst kind; an elective King.

For 237 years, we’ve all assumed that people like that were wrong.