On April 10, Chief Justice John Roberts placed a case on the
Supreme Court’s docket that could potentially entrench far more devastating and
irremediable damage to the global economy than Trump’s tariffs; eviscerate
American democracy more than the president’s maneuvers to crush critics in
academia, law, and business; and undermine rule-of-law governance more than the court’s widely covered April 7 procedural finesse of Trump officials’ defiance
of district judges’ orders to halt unlawful deportations. The potential for
catastrophe cannot be dismissed as hysterical fearmongering. It will indeed come
to pass, if the court adheres to the letter of the so-called “unitary
executive” theory long treasured by right-wing legal academics and pundits,
repeated reflexively by hard-line conservative judges, and recently given nods
of approval by various justices on the Supreme Court’s right—to justify the claim
that the Constitution bars Congress from prescribing that presidents can remove
heads of multimember agencies only “for cause.”
Dating back well over a century, courts have interpreted
that bar to be so high that presidents refrain from even trying to terminate
officeholders enjoying “for-cause” removal protection. Ideological legal
conservatives have long condemned this brake on presidential power because,
they insist, by “vesting” the “executive power” in “a president,” the
Constitution gave the president “all of the executive power … not some
of it,” in the words of
their late icon, Justice Antonin Scalia.
Scalia’s reasoning and rhetoric have driven some of the Roberts court’s most significant decisions. However, despite this seemingly implacable momentum,
reasons exist to expect that a majority of the court, including at least two of
the six conservative justices, can be persuaded, however regretfully, to put
ideology aside when they reach the merits of the case the chief justice just
docketed.
The case in question consolidates two litigations
challenging Trump’s firing of commissioners of, respectively, the National
Labor Relations Board, or NLRB (Wilcox v. Trump), and the Merit Systems
Protection Board, or MSPB (Harris v. [Treasury Secretary Scott] Bessent).
Both of the terminated officials are covered by statutory for-cause-only
removal safeguards. Trump and his legal minions acknowledge that there was no
basis for removing either official in the requirements specified in the applicable
statutes; both officials had exemplary performance records, which plainly failed
to meet the identical criteria in both statutes that permit removal only for
“inefficiency, neglect, or malfeasance.”
Nonetheless, Trump’s Justice Department lawyers maintain
that he can ignore these strictures because the Constitution bars Congress
from placing any limits on his ability to fire agency heads for any reason or
no reason. “The President,” Solicitor General John Sauer told the justices in his
brief, “should not be forced to delegate his executive power to agency heads
who are demonstrably at odds with the Administration’s policy objectives for a
single day.”
In 2020, when conservative justices comprised a five-justice
majority, the court decided 5–4, in Seila Law v CFPB, that the
Constitution mandated at-will status for single-headed executive agencies—namely, in that case, the Consumer Financial Protection Bureau. But the
decision expressly declined to extend this mandate to multimember “independent”
agencies, such as the NLRB and the MSPB. The justices can no longer dodge that
fraught question.
On April 7, a 7–4 majority of the Court of Appeals for the
District of Columbia Circuit rejected the Trump administration’s claim. The
majority (consisting of all seven of the court’s judges appointed by Democratic
presidents) ruled that a 1935 Supreme Court decision upholding for-cause
removal protections for heads of multimember agencies remained binding
precedent, never mind that it has fallen out of favor with their
Republican-appointed colleagues and other legal luminaries on the right. The Court
of Appeals majority ordered the reinstatement of both of the agency board
members Trump had fired, pending the outcome of the litigation.
Two days later, Solicitor General Sauer filed an emergency
petition in the Supreme Court seeking reversal of the reinstatement order. Chief
Justice Roberts’s warp-speed grant of Sauer’s petition, three hours after it was
filed, was interpreted
as merely giving the justices time to mull the weighty issues at stake, not
presaging the result after they complete that process. Sauer asked the court to hear and decide the
case in the current term, which expires at the end of June.
Why might a critical mass of the Supreme Court’s
conservative supermajority shrink from letting their ideology propel them to
broaden untrammeled presidential firing authority to multiheaded agencies? Two
potential reasons spring to mind: the real-world consequences of such an
extension and the doctrinal and empirical holes in the undergirding unitary
executive theory that scholars have exposed since Justice Antonin Scalia first
expounded the current version of that concept in 1988.
Of the two, the calamitous-consequences barrier, while as
yet only fleetingly acknowledged by the justices, is no doubt the most
daunting. In particular, two words give that prospect intimidating force. Those
words are the Fed. As legal scholar
Stephen Vladeck recently wrote,
“The not-very-well-kept secret is that the justices are (understandably) wary
about handing down a ruling that would allow any President, and perhaps this
one in particular, to exercise direct control over U.S. monetary policy by
controlling who sits on the Federal Reserve Board.” Since the original Framers’
establishment of the first and, especially, the second Bank of the United
States, a broad and bipartisan consensus has hardened, in the U.S. as well as
every industrialized nation, that an independent central bank with far-reaching
powers is essential to maintaining monetary stability and sustaining economic
growth.
Conservative legal experts with financial regulatory
expertise are well aware of the threat posed by subjecting the Fed to total
presidential control. Peter Wallison of the American Enterprise Institute,
otherwise a champion of judicially enforced controls on the “administrative
state,” nevertheless wrote,
on February 28 of this year, “Under no circumstances would it make sense as
public policy for the president to have the power to control the Fed.” To date,
no one has come up with a principled basis for distinguishing multimember
agencies like the NLRB or the Federal Trade Commission, or FTC,—which
conservatives would love to rein in—from the Fed, which they, along with the
corporate sectors with which they are often allied, fervently believe requires
independence. This poses a dilemma, since, as Wallison observed, “If the Court
concludes that the president can control a multi-headed independent agency,
there will be no Court-approved avenue that clearly makes the Fed immune from
presidential control.”
Wallison’s acknowledgment of untoward real-world
consequences is not the only weakness in conservatives’ support for unitary
executive theory. In 2018, libertarian law professor Ilya Somin announced that “unitary
executive theory is one of the few issues on which I have changed my mind
during the Trump era,” a turnabout he confirmed in January of this year. Somin’s switch appeared on the widely read
conservative-libertarian legal blog The Volokh Conspiracy, which has
posted other broadsides against the theory.
Apart from the Fed, the Federal Communications Commission,
or FCC, is another independent agency no one—right, left, or center—should want
to be subject to unchecked presidential control. There would seem to be no need
to elaborate the existential danger to democracy inherent in giving the White
House, especially but by no means exclusively this White House, total control
of the FCC’s authority to award or withdraw broadcast licenses from owners of,
say, The Washington Post, The New York Times, or Rupert Murdoch’s
media empire.
Perhaps less dramatic, but hardly unimportant, are the virtues
of independence for other such agencies. For example, take the Federal Trade Commission. The FTC’s antitrust
authority is often dismissed as duplicative of the Department of Justice’s
Antitrust Division. But an unscrupulous president can readily use DOJ’s
antitrust powers to bully corporations big and small into toeing his or her
line—as indeed Trump was widely perceived to have done, or attempted, in his
first term. Now, in his second term, the willingness to abuse power in this
manner is something that Attorney General Pam Bondi has all but overtly proclaimed
a linchpin for personnel evaluation.
There are unique reasons why the independence of the Merit Systems Protection Board, directly at stake in the pending Supreme
Court case, is essential. Independence from White House control is central to the overriding
objective of the 1883 Pendleton Act, as refined by the 1978 Civil Service
Reform Act, to replace the corruption-saturated “spoils system” of the nineteenth
century, which culminated in the
assassination of President James Garfield by Charles Guiteau. Thereafter,
the corrupt favor-trading regime was replaced by a merit-based professional
civil service.
Since 1988, Justice Scalia and his disciples have
consistently justified the unitary executive theory, as a matter of law, on originalist grounds—specifically, on the claim that the Framers so understood the Constitution, even
though the Constitution’s text itself prescribes nothing whatsoever to limit
Congress’s authority to regulate the mode of removing agency heads. Unitary
executive proponents have rested their legal case on the contention that unfettered
firing authority was implicit in Article 2’s “vesting” of federal
“executive” power in the president.
Given the theory’s lack of actual textual basis, unitary
executive proponents needed to show that their understanding was borne out by contemporaneous
statements and practice. For a considerable time, this claim was widely accepted
as true or at worst plausible. But as unitary executive theory took hold on the right,
that narrative began to be challenged
by (largely liberal) scholars. Over the years, more and more founding-era
actions inconsistent with the theory came to light. Recently, research has irrefutably exposed the
notion of a founding-era “consensus” around unitary executive theory as simply
bad law-office history—despite its endorsement in opinions of the nation’s
highest court.
To take one example, sufficiently persuasive on its own: the
First and Second banks of the United States, vastly powerful instrumentalities resembling
the twentieth-century Fed, especially the Second bank. As D.C. Circuit Judge
Patricia Millett wrote on April 6, when the case was before her court, “As for
the First and Second Banks of the United States, Congress provided the
President no removal authority over members of the First Bank, and gave the
President control over only five out of twenty-five members of the Second Bank.”
Significantly, legislation creating the First Bank, enacted in 1791, was
crafted by Treasury Secretary Alexander Hamilton—famously, among all the Founding Fathers, the most ardent champion of an “energetic” president. The
Second Bank legislation was signed into law in 1816 by President James Madison.
Recent scholarship has brought
to light other founding-era legislation that extensively circumscribed
presidential power to fire senior executive officers of federal
instrumentalities, including officials equivalent to modern agency heads.
In short, we now know that contemporaneous practice demonstrated
the opposite of unitary executive proponents’ claim that there was an
original consensus understanding that Article 2 implicitly “vested” presidents
with full authority over the entire executive branch, specifically over removal
of all agency heads. With their contemporaneous-practice rationale in tatters, the
legal case for extending unitary executive theory to junk over two centuries of
federal institutional architecture simply falls apart.
Moreover, the constitutional text that does bear on the
issue augurs emphatically in support of the flexibility Congresses and
presidents from the founding era forward to the present have shown in crafting
institutional arrangements like the central banks, the merit-based civil
service system, and the National Labor Relations Act’s machinery for settling
labor disputes through legal procedures rather than the industrial warfare
rampant prior to passage of the 1936 National Labor Relations Act. That text is
the “necessary and proper clause” of Article 1.
This clause confers on Congress the power “To make all
Laws which shall be necessary and proper for carrying into Execution the
foregoing [enumerated] Powers [specifically assigned to Congress], and all
other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof.” (Emphasis mine.)
Famously, that text was (contemporaneously) interpreted by Chief Justice John
Marshall to empower future generations “to provide for exigencies which, if
foreseen at all, must have been seen dimly, and which can be best provided for
as they occur.” As one of today’s most
widely respected center-right legal authorities, former Harvard Law dean and
current University Provost John Manning, has explained,
this clause precludes “establish[ing] a constitutional violation simply by
showing that Congress has constrained” the way executive power “is
implemented”; that is, per Manning, “exactly what the Clause gives Congress the
power to do.”
In relevant opinions and oral arguments, the conservative
justices have evinced that they feel tugged in opposite directions—on the one
hand, by the long-held ideological staple that complete presidential control of
the executive power is constitutionally compelled and, on the other, by their
apparent recognition of the potentially catastrophic consequences of following
that line to its logical end point.
In their 2020 decision nixing independence for the CFPB,
Chief Justice Roberts repeated Scalia’s bromide that “the executive power—all
of it—is vested in a President.” On the other hand, Roberts stressed that a 90-year-old
precedent “held that expert agencies [were] led by a group of principal
officers removable … only for good cause.” (Emphasis is in the original.) He also observed that the single-director
arrangement enacted by Congress “differed from the proposals of [then]
Professor [Elizabeth] Warren and the Obama administration,” for creating “a traditional independent agency headed by a multimember board or
commission.”
For tea-leaf readers, of particular interest is potential
swing justice Brett Kavanaugh’s lengthy dissenting opinion
when he was on the Court of Appeals for the D.C. Circuit, regarding an
identical 2018 challenge to the validity of the CFPB, just before his elevation
to the Supreme Court. On that occasion, Kavanaugh
did not merely argue that multimember independent agencies could be
distinguished from their single-director cousins; he spelled out positive
attributes of the former genre.
He stressed, “Because of their massive power and the
absence of Presidential supervision and direction, [single-director] independent
agencies pose a significant threat to [both] individual liberty and to the
constitutional system of separation of powers and checks and balances [because
of the director’s] authority to take action on one’s own, subject to no check—[unlike] any single commissioner or board member … or any other official in
the U.S. government, other than the president.”
He also noted that not only “then-Professor and now-Senator
Elizabeth Warren,” as well as President Obama’s administration, but
Representative Barney Frank and Democratic leader Nancy Pelosi also backed a
multimember format for the CFPB. He detailed how presidents retain
considerable authority to shape the policy direction of multimember independent
agencies because, typically, they can replace the agency chairperson and designate
a replacement from among the members, with no requirement to show cause. On the
other hand, Kavanaugh referenced another D.C. Circuit opinion of his noting
“tension” between the Supreme Court’s 90-year-old precedent upholding
independent multimember agencies and more recent decisions, especially the CFPB
case, Seila Law v. CFPB.
What all this mandates for liberal advocates is that they
must mobilize a robust and broad coalition that includes conservatives,
economists, business and especially financial leaders, as well as liberal constituencies
close to the NLRB and the MSPB, to hammer home to the justices that it is time
to shelve an ideological credo unfaithful to the text of the Constitution or
the design and actions of its Framers, out of sync with over two centuries of
entrenched—and successful—tradition, and, most of all, a real threat to economic
stability and growth and democratic governance.
The post Will the Supreme
Court Crash the Global Economy? appeared first on New Republic.
