US Supreme Court justices are returning on Monday two week meeting Of oral arguments. along with argument scheduled For January, the two meetings will include debates on two cases addressing an important question of the moment: Does Congress really matter anymore?
it Used to be a big one shadow dock Question all year round – And Congress has generally been sidelined – but the coming arguments could lead to a decision that would expand the power of the executive in a way that I think fundamentally conflicts with any historical understanding of how the three branches of the federal government should work.
The cases — one set for Dec. 8 and the other for Jan. 21 — relate to President Donald Trump’s effort to fire federal officials, where Congress specifically included language that had become law under the previous president that prohibited the removal of officials in an effort to ensure that the entity involved had some independence.
This is not a new fight. In fact, the questions go back to “the summer of Philadelphia,” as Justice Clark McReynolds described the constitutional convention of 1787 in a case about presidential removal powers that was before the justices 100 years earlier. This was an issue that dominated the First Congress as it decided how to establish the role of the person now called “Secretary of State”.
Ninety years ago there was a fight over the Federal Trade Commission.
Franklin Delano Roosevelt was President and sought to remove William Humphrey as a member of the FTC on October 7, 1933. Humphrey protested, and a trial – which continued after his death – began. two questions before the court Whether the FTC statute restricted Roosevelt’s right to fire and, if so, whether that restriction was constitutional.
Justice George Sutherland said, “The Commission must be non-partisan and must, by the nature of its duties, act with complete impartiality.” wrote to court in Humphrey’s executorNoting, “It is not charged with implementing any policy other than that of Law. Its duties are neither political nor executive, but primarily quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are asked to exercise the trained judgment of a ‘body of appointed experts’ Informed by law and experience.”
The whole purpose of the FTC, Sutherland wrote, was “to create an institution that would be independent of executive authority, except of his choosingTo that end, he continued:
(i) It is clear that the Congress was of the opinion that length and certainty of tenure would contribute significantly to this. And to hold that, nevertheless, the members of the Commission shall hold office only at the pleasure of the President, would largely be to defeat the purpose which Congress certainly sought to achieve by fixing the term of office.
Thus, the law restricted Roosevelt’s authority. Is it allowed? To answer that, Sutherland needs to look at what the FTC stands for:
The Federal Trade Commission is an administrative body created Congress must carry out the legislative policies embodied in the statute in accordance with the legislative standards set forth therein, and perform other specified duties as legislative or judicial assistance. Such a body cannot in any reasonable sense be portrayed as the arm or eye of the executive. Its duties are performed without executive recess and, by statute, must be free from executive control.
Noting that the Roosevelt administration’s argument would influence the Interstate Commerce Commission and the Court of Claims, Sutherland concluded, “We believe that under the Constitution it is clear that the President does not have unlimited power of removal with respect to officers of the character now named.”
Congress’s expulsion ban was constitutional, and FDR lost. The court was unanimous.
In deciding this way, the Court acknowledged that “whether the President’s power to remove an official will prevail over Congress’s right to condition the power … will depend on the character of the office” and that “there remains an area of doubt” about neither a “purely executive” like Secretary of State nor the role of the FTC member at issue.
In recent years, the Roberts court has stretched that “zone of doubt.” strike down Fixed raising the barWhile the bipartisan, multi-member independent agencies created by Congress were left to function as they had since 1935.
Until the second Trump administration. Trump has tried to end all the sanctions. beginning in mayThe Supreme Court has allowed — over the shadow docket and the objections of Democratic appointees — Trump’s efforts to fire members of bipartisan multi-member commissions during the litigation, starting with members of the National Labor Relations Board and the Merit System Protection Board. this continued in summerWith members of the Consumer Product Safety Commission. But 22 SeptemberThe Supreme Court did this with Trump’s effort to fire Rebecca Kelly Slaughter.
Bringing us next week. Oral arguments will be on Slaughter’s firing as a member of the Federal Trade Commission.
Yes, the unanimous 1935 decision can be overruled by the justices, and the majority has almost said they plan to do so – if for no other reason than by way of attempting to suggest that, for some reason, Federal Reserve Board members may be treated differently than everyone else. This is the January argument – over Trump’s effort to remove Lisa Cook as governor of the Federal Reserve Board.
And yet, despite all this, the silver lining here is that — while they could take one of those other cases — the Supreme Court, by taking up the Slaughter case, will make it abundantly clear to everyone whether the court’s majority is seeking to change the balance of powers between the branches.
To understand how dramatic a change this is, I want to go back to a case from a decade ago. Humphrey’s executorsThe case before the judges 100 years ago.
In that case, Woodrow Wilson was the president and fired a postmasterFrank Myers. The question in that case – which continued after his death – was whether the Senate’s ban on removing Myers without Senate approval was constitutional.
decision Chief Justice William Howard Taft – a former president – sided with the presidency, with Taft concluding that “depriving the President of the unrestricted power to remove first class postmasters … is a violation of the Constitution.”
In dissent, three justices – Justices Oliver Wendell Holmes, McReynolds, and Louis Brandeis – wrote, and their words show how far this discussion has gone in the direction of expanding executive power.
Holmes put it simply:
We have to deal with an office which owes its existence to the Congress and which the Congress can abolish tomorrow. …The President has a duty to execute the laws, a duty which does not go beyond the laws or require them to accomplish more than Congress has deemed fit to leave within its power.
McReynolds – the judge who wrote about the summer heat in Philadelphia – wrote the broader dissent. He explained in detail the powers of the legislative branch and the broad limitations of the executive branch.
It’s an informative read, but I think the two selections help to clarify the shift that was at issue at the time – and the largely further shift toward executive dominance that disavows governance. Humphrey’s executor Will represent.
“With respect to the insistence that the power of removal is a necessary incident of the President’s duty to enforce the laws,” McReynolds wrote, “suffice it to say now: The general duty to enforce all laws cannot justify the violation of some of them.”
In other words, the President cannot “faithfully execute” the laws by breaking them.
With regard to removal specifically, McReynolds quotes Joseph Story, one of the earliest Supreme Court justices, from his constitutional treatise.
“Indeed, it is absolutely impossible not to feel,” wrote Story, “that, if this unlimited power of removal existed, it might, in the hands of a daring and designing man of high ambition and weak principles, be made an instrument of the worst oppression and the most vindictive vengeance.”
Sound familiar?
The question before the Roberts court in the Slaughter and Cook cases will not be whether they want to open the US to that possibility, given that Trump has essentially said that is his aim.
The question before the Roberts court will be whether that’s what they want.
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