On Thursday night, the Supreme Court’s six Republican-appointed justices allowed President Donald Trump to remove two executive branch officials: Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. In doing so, the court refused to enforce a major precedent. The decision indicated that, despite recent rebukes, the court is willing to disregard longstanding precedent for Trump to proceed with his overhaul of the federal government.
Before the court’s actions, a unanimous 1935 Supreme Court precedent called Humphrey’s Executor insulated both Wilcox and Harris, as members of independent boards, from removal without good cause. On Thursday, the GOP-appointees effectively cabined—or overturned—Humphrey’s Executor, in a glib order; they discarded the precedent that undergirds the modern executive branch in the same way they might toss out an old shirt they no longer feel like wearing.
The court offered a few justifications. First and foremost, it nodded at the Unitary Executive Theory. The theory rests on the idea that the Constitution vests all the executive authority in the president, and therefore it’s unconstitutional to place limits on how the president uses that authority. This theory was crafted by conservative lawyers in the 1980s and early 1990s, when Republicans seemed to have a lock on the presidency but couldn’t get control of Congress and therefore needed a justification for the president to act unilaterally. The Roberts court has spent the last 15 years embedding the theory into constitutional law—even though many academics argue it is an inaccurate and opportunistic reading of the Constitution and the nation’s history.
“Because the Constitution vests the executive power in the President…he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” Thursday’s anonymous order reads. “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
The order did not come in the normal course of business, after full briefings, oral arguments, and deliberation. Instead, the court issued an unsigned opinion on its emergency docket, granting the administration’s request to remove Wilcox and Harris while the lower courts continue to consider the case. It would be a significant moment if, in the regular course of business, the Supreme Court overturned a 90-year precedent upon which Congress has relied to shape the federal government. But it is more irksome to do it on the sly, effectively telling the administration to go ahead and fire whomever they want, never mind Congress’ statutes or the court’s own precedents.
The decision also has one key reservation. The court did tell Trump that some officials are off limits: the members of the Federal Reserve Board of Governors and the Federal Open Market Committee (a body within the Federal Reserve that sets the nation’s monetary policy). The court attempts to justify this differentiation by asserting that “the Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
The question of the Fed has weighed on this case from the beginning. On the one hand, court observers know that the GOP-appointed justices are all in for a unitary executive of nearly unlimited power. On the other hand, that would implicate the independence of the Federal Reserve, and with it the world financial order and global economy. The majority managed to split the baby with what Justice Elena Kagan, in her dissent for the Democratic appointees, termed the “bespoke Federal Reserve exception.” It’s not consistent with the law. But it is consistent with the justices’ own preferences.
The Unitary Executive Theory also shines through the majority’s order in unwritten ways. It states that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Here, the order equates the “government” with the president in what almost reads like a Freudian slip. But it is Congress that created the NLRB and MSPB, with removal protections for its expert commissioners, so that those bodies could carry out their functions. Thus, this case does not pit the government against Wilcox and Harris but Trump against Congress—a body whose prerogative unitary executive theory nearly reads out of the Constitution.
As recently as last week, the Supreme Court looked like it might actually rein in Trump. It is an immeasurably good thing that (most) of the justices take seriously Trump’s efforts to banish people to foreign gulags and appear ready to require at least due process first. In the course of its litigation over Trump’s unlawful deportations, as well as birthright citizenship, the justices have begun to recognize that this administration cannot be trusted to follow either the law or court orders.
But, even as the court tries to limit Trump’s most authoritarian impulses, it is augmenting his power as it reshapes the government in the mold of the unitary executive theory. As this week’s decision demonstrates, when this court’s agenda and the president’s align, precedent and Congress are shoved aside.
This post has been syndicated from Mother Jones, where it was published under this address.