Justice Sonia Sotomayor suggested the Trump administration was asking the Supreme Court to completely upend the U.S. government in a remarkable exchange.
The country’s highest court was hearing oral arguments in the case of Trump v. Slaughter when she made the observation.
“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Sotomayor said.
The Supreme Court was hearing arguments in the case that could dramatically expand the president’s power by allowing the commander-in-chief to fire members of the Federal Trade Commission.
The conservative majority appeared poised to side with the president and expand presidential power not just at the FTC but roughly two-dozen other independent agencies. But the liberal justices sounded the alarms.
Sotomayor had been challenging Solicitor General D. John Sauer on Monday about the administration’s push for the court to overturn the 90-year precedent set by Humphrey’s Executor v. U.S. that upheld a law restricting the president’s ability to fire FTC commissioners.
Despite Sauer’s argument, Sotomayor said he still had not answered her question on where else the court has “so fundamentally altered the structure of government?”
She pointed out that independent agencies have been around since the nation’s founding and said it was “not a modern contrivance.”
Sauer disagreed with her observation.
“You’re putting at risk the independence of the tax court, of the federal claims court, Article I court. You’re putting at risk the civil service. I don’t see how your logic could be limited,” Sotomayor said.
Sauer noted the administration had not challenged the non-Article III courts, but Sotomayor cut in, saying “not yet.”
Later in the hearing, Sotomayor returned to her line of questioning about narrowing agency independence.
“What you’re saying is the president can do more than what the law permits,” Sotomayor said.
Her comment was met with a brief pause before Sauer repeated his argument that there’s precedent that the Constitution gives the president “exclusive and illimitable power to remove executive officers, and Humphrey’s should be overruled.”
Justice Elena Kagan observed that if the court took the argument stated in the government brief, there did not appear to be a stopping point.
Kagan suggested that if the court did what the administration was asking, it would not only give the president executive power, but legislative and rule-making power.
The liberal justice observed that Congress had given independent agencies work with the understanding that they were not under the control of a single person.
She suggested that by doing what Trump wants, the president will have “massive, unchecked, uncontrolled power not only to do traditional execution but to make law through legislative and adjudicative frameworks.”
Conservative Justice Brett Kavanaugh said he shared concern that the arguments made by the administration could undermine the independence of the Federal Reserve and asked the solicitor general to distinguish the difference.
He argued there were unique circumstances surrounding the Fed, and the administration was not challenging them.
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