In a new and more revealing sign that the Supreme Court is on the verge of allowing President Trump to put partisan loyalists in all policy making posts in the federal Executive Branch, the Court on Wednesday gave him permission to fire three members of a half-century old consumer protection agency.
The Court has done that once before, in May, but this time one of the Justices strongly hinted that a majority is already preparing to overturn a 90-year-old precedent that has limited presidential power to fire officials who lead agencies that Congress had created specifically to be free of political influence.
There are now more than 50 such agencies, and together they make policy for regulating vast areas of the lives of all Americans.
In a one-page order yesterday, the Court by a 6-to-3 vote temporarily blocked an order last month by federal Judge Matthew Maddox of Baltimore that had put back in office three members of the Consumer Product Safety Commission – named to their jobs there by President Biden but fired by President Trump. The Commissioners, Mary Boyle, Alexander Hoehn-Saric, and Richard Trumka, sued and had temporarily won.
The Commission was created in 1972 as an independent agency to make rules to protect consumers from unsafe products, ranging from lead paints to pajamas made of flammable material to unsafe hair dryers to cribs built with bumpers that can suffocate a baby.
Although the law governing that agency specifies that its members can only be fired for a good cause, such as neglecting or failing to perform their duties, Trump dismissed the three Democratic members without specifying a cause.
The Court’s six conservative Justices apparently joined in supporting Wednesday’s action, relying on a similar order the Court had issued in May that permitted Trump’s firing of members of two other independent agencies – the National Labor Relations Board and the Merit System Protection Board. As it did in May, the majority wrote Wednesday 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 [that officer’s] statutory duty.” It added: “The same is true here.”
The majority insisted that its action was only an “interim order,” but its actual impact was to remove the three commissioners and keep them off of the Commission until the case has run its course all the way through lower courts and then back up to the Supreme Court.
In taking the consumer agency controversy to the Court, the Trump Administration asked the Justices not only to block Judge Maddox’s order, but also to agree now – without waiting for any further action in lower courts – to take on the dispute itself and rule at its next term, starting next October. The majority simple ignored that separate request.
However, Justice Brett M. Kavanaugh, while joining the order to allow the commissioners’ firing, wrote that he would have granted review by the Court, bypassing the lower courts’ further action.
He offered an explanation that appears to be without precedent in the Court’s history. He suggested that, if a controversy reaches the Court in a preliminary way, but lurking within it is the prospect that the Court will use the case to overturn or at least narrow a prior precedent, the Justices should promptly take on the dispute themselves and then rule.
Until recent years, the Court had seldom stepped in to decide a controversy until lower courts had finished their part in the process. They held off acting in order to get the benefit of further exploration by other judges. With the Court’s now-dominant conservative majority, bypassing lower courts is occurring frequently.
Justice Kavanaugh did not name a precedent that might be at risk in the dispute over presidential firing of independent agency officials, but everyone involved – including the Justices and their clerks – know that this dispute implicates a 1935 decision by a unanimous Court in the case of Humphrey’s Executor v. United States. That ruling barred President Franklin Roosevelt from firing a member of an independent agency, the Federal Trade Commission.
Kavanaugh said that, in this case, there was “a fair prospect” that a precedent would be reconsidered, so the Court should move ahead now and spare the lower courts from spending further efforts on a case that will ultimately reach the Supreme Court for a final decision. Only the Supreme Court has the power to overrule one of its constitutional decisions.
It is nearly certain that Kavanaugh would not have made his bold assertion of the Court’s power without having discussed it with his colleagues. He would have circulated his separate opinion among the other Justices before releasing it publicly.
Previously, Justices Neil M. Gorsuch and Clarence Thomas have argued that the Court should at some point reconsider the Humphrey’s Executor precedent, so that idea is very likely to have been talked over as Trump’s firings of independent officers have grown in number. Kavanaugh was the first to suggest making the consumer agency firings the test case for casting aside the old precedent.
Wednesday’s order did not say who was in the majority to allow the dismissals, but it appeared to have the support of those three conservative Justices along with Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Amy Coney Barrett.
The Court’s three liberal members joined in a dissent written by Justice Elena Kagan. With her were Justices Ketanji Brown Jackson and Sonia Sotomayor. Those three had strongly criticized the Court for its earlier action on firings by Trump of independent officers, and did so again on Wednesday. “By means of such actions,” they wrote, “this Court may facilitate the permanent transfer of authority, piece by piece, from one branch of government [Congress] to another [the President as head of the Executive Branch]…The majority has acted…to override Congress’s decision about how to structure administrative agencies so that they can perform their prescribed duties.”
Trump has regularly won most of his “emergency” requests to the Court this year to carry out his wide-ranging efforts to pare down or restructure government agencies and to make sweeping uses of presidential power. The Court majority has often done so without explaining why. The practical effect has been to greatly expand the powers of the Presidency, even though many of the Court’s responses have been only temporary.
