In a slashing 43-page dissent from the Supreme Court’s decision on Monday allowing the president to fire the leaders of independent agencies for any reason or no reason, Justice Sonia Sotomayor wrote that the majority had destroyed the separation of powers and upended settled constitutional law. The ruling, she wrote, “promises to unleash only chaos.”
In her dissent, Justice Sotomayor wrote that “today, this court undoes centuries of political practice and concludes that all three branches of government have been acting in open defiance of the Constitution all this time. Its conclusion is wrong.”
Justice Sotomayor summarized her dissent from the bench, a rare move reserved for profound disagreements.
As she spoke, criticizing the court for extending its “maximalist view of presidential power,” Justice Sotomayor often looked at Chief Justice John G. Roberts Jr., who delivered the majority opinion. He did not meet her gaze.
When Justice Sotomayor asserted that “the one thing that does appear to be clear going forward is that chaos will follow,” her fellow liberal justice Elena Kagan, seated several chairs to her left, looked overcome with emotion.
The ruling dealt with laws adopted by Congress that said some regulators could be fired by the president only for cause. Chief Justice Roberts, writing for the majority, said such laws infringed on the president’s power to run the executive branch.
Justice Sotomayor, joined by the other two Democratic appointees, Justices Kagan and Ketanji Brown Jackson, said Congress had the power to shield administrative agencies like the Federal Trade Commission from political interference.
“For more than a century,” Justice Sotomayor wrote, “the nation has firmly rejected the majority’s view and has recognized that Congress, not this court, has primary say over whether multi-member commissions like the F.T.C. should have some insulation from direct presidential control.”
Justice Sotomayor also accused the majority of bad faith in overruling an important precedent from 1935, Humphrey’s Executor, in which the court had held that a law limiting the president’s power to fire regulators was constitutional.
“Seldom, if ever, has this court worked such a profound bait and switch on a coequal branch,” she wrote. “For more than 90 years, Congress believed, with this court’s express approval, that it was allowed to create a workable government, including by granting certain agencies tasked with certain responsibilities some independence from presidential control.”
Justice Sotomayor welcomed language in the majority opinion carving out the Federal Reserve from the ruling but questioned whether that move was rooted in principle.
“Today, the majority replaces 90 years of proven, workable practice with a half-baked theory of executive power that is simultaneously all encompassing yet also subject to necessary but undefined exceptions,” she wrote.
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