The upcoming SCOTUS cases over Trump's firing powers could change America

This latest iteration of a 250-year old debate goes much further than earlier generations would have thought possible — or advisable. And, for paid, subscribers: Closing my tabs.

The U.S. Supreme Court justices are coming back on Monday for a two-week sitting of oral arguments. Along with the arguments scheduled for January, those two sittings will include arguments in two cases addressing a key question of this moment: Does Congress really matter any longer?

This has been a big shadow docket question all year — and Congress has generally been pushed to the side — but upcoming arguments could lead to a ruling that would significantly increase the executive’s power in a way that seems to me to be fundamentally at odds with any historic understanding of how the three branches of the federal government are supposed to work.

The cases — one set for December 8 and the other for January 21 — are over President Donald Trump’s effort to fire federal officials where Congress specifically included language that became law under a past president restricting the removal of officials in an effort to ensure that the entity involved has some independence.

This is not a new fight. In fact, the questions go back to “the heat of a Philadelphia summer,” as Justice Clark McReynolds described the constitutional convention of 1787 in a case about the president’s removal powers that was before the justices 100 years ago. It was an issue that swept up the first Congress as it decided how to establish the role of the person now called “Secretary of State.”

Ninety years ago, the fight was over the Federal Trade Commission.

Franklin Delano Roosevelt was president and sought to remove William Humphrey as a member of the FTC as of October 7, 1933. Humphrey resisted, and a lawsuit — that continued after his death — ensued. The two questions before the court were whether the FTC statute restricted Roosevelt’s removal authority and, if so, whether that restriction was constitutional.

“The commission is to be non-partisan; and it must, from the very nature of its duties, act with entire impartiality,” Justice George Sutherland wrote for the court in Humphrey’s Executor, noting, “It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts ‘appointed by law and informed by experience.’“

The entire purpose for the FTC, Sutherland wrote, was the create “body which shall be independent of executive authority, except in its selection.“ To that end, he continued:

[I]t is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

As such, the statute restricted Roosevelt’s authority. Is that allowed? To answer that, Sutherland had to look at what the FTC is:

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control.

Noting that the Roosevelt administration’s argument would affect the Interstate Commerce Commission and the Court of Claims, Sutherland concluded, “We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.“

Congress’s removal restriction was constitutional, and FDR lost. The court was unanimous.

In so deciding, the court acknowledged that “[w]hether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power … will depend upon the character of the office“ and that “there shall remain a field of doubt“ as to roles neither “purely executive“ like the Secretary of State nor like the FTC member at issue.

In recent years, the Roberts court has pulled on that “field of doubt,” striking down certain removal restrictions, while leaving the bipartisan, multi-member independent agencies created by Congress to function as they have since 1935.

Until the second Trump administration. Trump has made an effort to end all restrictions. Beginning in May, the Supreme Court has — on the shadow docket and over the objections of the Democratic appointees — allowed Trump’s efforts to fire members of bipartisan multi-member commissions to take effect during litigation, starting with members of the National Labor Relations Board and Merit Systems Protection Board. This continued over the summer, with members of the Consumer Product Safety Commission. On September 22, the Supreme Court did so with Trump’s attempt to fire Rebecca Kelly Slaughter.

Bringing us to next week. The oral argument will be over Slaughter’s firing … as a member of the Federal Trade Commission.

Yes, the unanimous 1935 decision could be tossed out by the justices, and the majority has all but said that they plan to do so — if for no other reason than by way of their effort to suggest that, for some reason, the members of the Federal Reserve Board might be treated differently than everyone else. That’s the January argument — over Trump’s effort to fire Lisa Cook as a governor of the Federal Reserve Board.

And yet, despite it all, the silver lining here is that — while they could have taken up one of those other cases — the Supreme Court, by taking Slaughter’s case, will be making perfectly clear to everyone whether a majority of the court is seeking to alter the balance of powers between the branches.

To understand just how dramatic a change this is, I want to go back to a case from a decade before Humphrey’s Executor, the case before the justices 100 years ago.

In that case, Woodrow Wilson was president and fired a postmaster, Frank Myers. The question in that case — which also continued after his death — was whether the Senate’s restriction on removal of Myers without Senate approval was constitutional.

The decision by Chief Justice William Howard Taft — the former president — sided with the presidency, with Taft concluding that “the unrestricted power of removal of first class postmasters [being] denied to the President … is in violation of the Constitution.”

In dissenting, three justices — Justices Oliver Wendell Holmes, McReynolds, and Louis Brandeis — wrote, and their words show just how far this discussion has moved toward an expansion of executive power.

Holmes put it simply:

We have to deal with an office that owes its existence to Congress and that Congress may abolish tomorrow. … The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

McReynolds — the justice who wrote of the summer heat in Philadelphia — wrote an extensive dissent. He detailed the powers of the legislative branch and the extensive limits on the executive branch.

It is an informative read, but I think two selections help clarify the shift that was at issue then — and the substantially further shift toward executive supremacy that overruling Humphrey’s Executor would represent.

“Concerning the insistence that power to remove is a necessary incident of the President’s duty to enforce the laws,” McReynolds wrote, “it is enough now to say: The general duty to enforce all laws cannot justify infraction of some of them.”

In other words, the president can’t “faithfully execute” laws by breaking them.

As to removal specifically, McReynolds quoted Joseph Story, one of the early justices of the Supreme Court, from his constitutional treatise.

“Indeed, it is utterly impossible not to feel,” Story wrote, “that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengeance.”

Sound familiar?

The question before the Roberts court in Slaughter and Cook’s cases will not be whether they want to open America up to that possibility, given that Trump has essentially said that is his purpose.

The question before the Roberts court will be if that is what they want.

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Closing my tabs

For those who don’t what this is, it’s my effort to give a little thank you to paid subscribers. “Closing my tabs” is, literally, me looking through the stories and cases open — the tabs open — on my computer and sharing with you all some of those I was unable to cover during the week but that I nonetheless want to let you know that I have on my radar. Oftentimes, they are issues that will eventually find their way back into the newsletter as a case discussed moves forward or something new happens that provides me with a reason to cover the story more in depth.

This Sunday, these are the tabs that I am closing: