Since taking his second oath of office, President Trump has been on a firing spree. In violation of numerous laws or longstanding presidential practice (or both), he has ordered the removal of many high-level officials who normally retain their positions regardless of who is in the Oval Office.
Some of these high-level officials have successfully challenged their removal in the lower courts. But on Thursday, in a case involving members of the National Labor Relations and Merit Systems Protection Boards, the Supreme Court quietly blessed some or all of these firings. In doing so, the court effectively allowed the president to neutralize some of the last remaining sites of independent expertise and authority inside the executive branch.
The court sought to cast its intervention as temporary, procedural and grounded in considerations of stability, with the unsigned order noting concerns about the “disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.”
In truth, the decision was radical. Whatever one thinks about the underlying question of presidential authority, the court should not have disposed of the case this way. It effectively overruled an important and nearly century-old precedent central to the structure of the federal government without full briefing or argument. And it did so in a thinly reasoned, unsigned, two-page order handing the president underspecified but considerable new authority.
Over the last four months, the legal world — and the country — has been plunged into chaos, and the Supreme Court bears a heavy dose of responsibility. Many of it decisions involving the presidency — including last year’s on presidential immunity — have enabled the president to declare himself above the law. The court’s latest order both enables the consolidation of additional power in the presidency and risks assimilating a “move fast and break things” ethos into constitutional law.
No modern president has ever come close to the large-scale personnel purges that we have seen under Mr. Trump, and for good reason: Many of the officials in question are protected by law from being fired at will by the president. Mr. Trump maintains that laws limiting the president’s ability to fire high-level officials are unconstitutional. In making that argument, he is drawing on a series of recent Supreme Court opinions emphasizing the importance of presidential control over subordinate officials and invalidating removal limitations at agencies like the Consumer Financial Protection Bureau.
But those recent decisions exist alongside another, older precedent, which until now has stood as a bulwark against any president’s ability to lay waste to independent agencies: the Supreme Court’s 1935 opinion in Humphrey’s Executor v. United States. In that case, the court concluded that Congress could create expert agencies designed to enjoy a degree of independence from the president and could limit the president’s ability to fire at will the leaders of such agencies.
The court’s recent unitary executive cases, with their expansive vision of presidential control, haven’t formally overruled Humphrey’s Executor. In fact, they stated explicitly that they were not “revisit[ing] that case,” which involved an agency, the Federal Trade Commission, whose multi-member structure differed from the single-member leadership structure at issue in the court’s recent cases. To be sure, the logic of the recent cases cast considerable doubt on Humphrey’s Executor. But lower courts reviewing challenges to President Trump’s firings have concluded that those firings are unlawful under existing precedent, applying Humphrey’s Executor and leaving to the Supreme Court “the prerogative of overruling its own decisions.”
That’s what happened in the challenges brought by Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board, two agencies that look a lot like the F.T.C. Ms. Harris and Ms. Wilcox prevailed in their cases before U.S. District Courts and then the full D.C. Circuit. But last week the Supreme Court “stayed” those lower court rulings protecting Ms. Harris and Ms. Wilcox, and permitted their firings to stand while the litigation proceeded.
The court provided scant reasoning for its decision, though it hastened to add that nothing it said should be taken to cast doubt on “the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee” — a nakedly policy-driven effort to head off the prospect of President Trump making good on threats to fire Jerome Powell, the Fed chair.
To be clear, I am not a fan of unitary executive theory, or of its proponents’ singular fixation on the president’s power to fire — a power the Constitution doesn’t expressly give the president and one that I don’t think history supports.
Even if you disagree — even if you think that Article II’s grant of “the executive power” to the president includes the power to fire at will any high-level official in the executive branch — the court’s disposition of the case sends a profoundly dangerous message to the White House. In firing officials like Ms. Harris and Ms. Wilcox, the administration acted in flagrant violation of statutes and in direct defiance of the Supreme Court. Handing the president a win here suggests that the administration did not need to abide by Congress’s statutes or the Supreme Court’s rulings as it sought to change legal understandings.
Given the range of high-stakes legal questions pending before the courts — on questions ranging from the due process rights of migrantsto the termination of federal funds to the firing of civil servants — this decision risks emboldening the administration further to act outside of our traditional constitutional order.
And it did so during a week when the administration has accelerated its assault on both norms and law — criminally charging a member of Congress, accepting a luxury Qatari jet and defending the president’s lavish investor dinner that would have been unthinkable under the ethics guidelines of previous presidential administrations.
In the past four months, the lower courts have done more than other government entities to respond to the chaos emanating from the Trump administration. They have enforced constitutional guarantees, required compliance with statutes and insisted on the force of the decisions of the Supreme Court.
The Supreme Court, by contrast, has undermined lower courts seeking to protect the rule of law and emboldened an administration eager to trample it. You can see why White House lawyers could feel encouraged to advise Mr. Trump of the correctness of a claim he was once mocked for making: “I have an Article II, where I have the right to do whatever I want as president.”
The court may believe that it retains the ultimate authority to check presidential lawlessness, even as it signs off on the elimination of many other constraints on presidential power. The danger is that by the time the court actually tries to exercise that authority, it may be too late.
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Kate Shaw is a contributing Opinion writer, a professor of law at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.
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