Pressing on with its controversial agenda to build up the power of the President, the Supreme Court ruled on Monday that the nation’s Chief Executive can fire almost any official in the Executive Branch without having to give any reason.
By a vote of 6-to-3, the Court overruled a 91-year-old precedent that had limited the President’s authority to remove members of the long list of boards and commissions that Congress set up to be independent of White House political pressure. There are now about 130 such agencies.
In a separate ruling, and by the narrowest of margins (5-to-4), the Court made one highly significant exception to the new authority: it protected the independence of the Federal Reserve Board, whose governors have 14-year terms, by allowing their firing only if the President had a significant complaint that the official was not performing the job.
While temporarily blocking President Trump’s attempt to remove Fed governor Lisa Cook, the Court majority did allow Trump to try again, if he spells out more clearly a cause for her dismissal and gives her a chance to try to refute the claim. Trump accused her of fraud in obtaining a mortgage on a home, which she denies. The dissenting Justices argued on Monday that Trump’s claim was enough to justify her removal.
Only one Justice, Clarence Thomas, argued that the Fed should lose its independence and that the President must be able to remove its governors at will. He wrote a dissenting opinion for himself alone.
The new decisions on presidential power, following a pattern that the Court has pursued with heightened rigor over the past 16 years, were written by Chief Justice John G. Roberts, Jr., who has made it his own long-term project.
The Court released these new rulings along with two other important rulings as it moved toward completing its term tomorrow, when it is expected to release up to four more decisions.
One of the other rulings on Monday brought a major defeat for President Trump in his attempt to curb the practice of mail-in or absentee voting in presidential and congressional elections. By a 5-to-4 vote in the case of Watson v. Republican National Committee, the Court ruled that federal law allows states to count mail-in votes that arrive in election offices within five days after the election, if they had been postmarked before that day.
In a 6-to-3 decision in the case of Chatrie v. United States, the Court embraced a new constitutional right of electronic privacy by ruling that police must get a judge-approved warrant before they may ask Internet service providers like Google to hand over location data from their customers’ cellphones – as, in this case, at the time of and near the scene of a robbery.
Clearly Monday’s most far-reaching decisions were the two that attempted to settle, once and for all, a constitutional dispute that has continued since the nation’s founding two and a half centuries ago. What does the Constitution’s Article II mean in its 15-word opening phrase: “The executive power shall be vested in a President of the United States of America.”
That “Vesting Clause,” the Court declared, is enough to assure Presidents that they have unlimited power to fire, even on a political whim, almost anyone who works in the vast Executive Branch of the federal government – that is, the Cabinet and scores of other agencies, including agencies that Congress wanted to be insulated from political influence originating in the White House. Congress has been creating such independent agencies since 1887.
Chief Justice Roberts’ opinion in the case of Trump v. Slaughter was suffused with disdain for a 1935 precedent of the Court, the unanimous decision in Humphrey’s Executor v. United States. That decision, a target for generations of those who favor the sweeping enhancement of presidential authority, barred Presidents from firing at will members of independent federal agencies – in that case, the Federal Trade Commission.
In the new case, involving the same commission, Roberts wrote that more recent rulings – including some that he has written for the Court – have diminished the scope of that precedent. “If anything is left of that precedent,” his new opinion said, “the Court overrules it.” Thus, the ruling struck down a federal law that barred removal of FTC members unless the President proved “inefficiency, neglect of duty, or malfeasance in office.”
The Court on Monday created an exception from the expansive new removal authority: the Federal Reserve Board. The Court said the President must show “just cause” to remove officials of the Fed before the end of their 14-year term.
The decision specified, though, that if the President seeks to fire a Fed officer under such a claim, the officer involved must be given some form of procedural protection, including the right to contest the President’s reasoning.
The opinion rejected outright the assertion by President Trump’s lawyers that only the President personally could decide what constitutes “just cause.” An official threatened with firing, the opinion said, has at “minimum” a right to an explanation of the reason, “some avenue for a response, and a deadline by which a response would be due.”
Any gaps that remain in what those phrases mean will have to be filled by the courts as Fed governor Lisa Cook continues to fight to remain on the Fed’s board.
An unusual aspect of this decision was that the Court actually had before it only issues concerning the validity of temporary court orders that kept Cook on the job for the time being. The Court reached out to turn the case into a full-fledged ruling, and did so in order to make very clear that it was protecting the independence of the Fed – the agency that serves as the nation’s “central bank,” with power to manage the nation’s credit and money supply.
For the ruling in the Fed case, the conservative Chief Justice had the support of liberal Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor and of conservative Justice Brett M. Kavanaugh. Dissenting were four conservatives, Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch and Clarence Thomas.
In the decision upholding the firing of FTC member Rebecca Slaughter, the Chief Justice was supported by Alito, Barrett, Gorsuch, Kavanaugh and Thomas. Sotomayor wrote the dissenting opinion, supported by Jackson and Kagan.
