In June SCOTUS decided two cases, Trump v. Slaughter and Trump v. Cook, on the power of the president to fire members of independent agencies despite tenure protections enacted by Congress. Roberts was joined by the usual five in Slaughter, but in Cook, the majority is the three Democratic appointees, Roberts and Kavanaugh. The cases are irreconcilable. In Slaughter, the Court said that Trump can fire anyone who works for any agencies without cause.
/When an agency “executes” a congressional mandate against private parties, it exercises executive power—no ifs, ands, or quasis about it.
Cook holds that Governors of the Federal Reserve Board can be fired only for cause after notice and a hearing, ignoring the holding in Slaughter, or perhaps reserving it for a later date, on the hypocritical grounds that the Solicitor General waived the Constitutional issue decided in Slaughter.
Slaughter is a case about the Federal Trade Commission, which has rule-maaking authority, the power to impose fines and the power to litigate. The Board of Governor of the Fed has broad regulatory authority over the US banking system, including the power to set monetary policy and to make and enforce rules about reserves. The Humphrey-Hawkins Full Employment Act requires the Fed to set US monetary policy so as to minimize inflation and push towards full employment. Doing so requires enforcing a congressional mandate against private parties by forcing privately-owned banks to increase reserves.
Roberts doesn’t mention the Cook case in his Slaughter opinion, and doesn’t mention Slaughter in his Cook opinion. This article by Lev Menand is a thorough debunking of Roberts’ shoddy reasoning and poor judgment. Menand explains the history and tradition analysis seemingly adopted by Roberts which is similar to that in the absurd Bruen case. Roberts’ version of history and tradition are barely recognizable to people like Menand who know actual history.
Stare decisis and reliance
Slaughter overturns the decision in Humphrey’s Executor v. US. which held that the president could not remove commissioners of the FTC except as permitted by the law creating the agency. Both before and after it was decided, Congress created a number of agencies which are shielded from presidential attack. Roberts deals with those under the heading of reliance. But reliance is just one of the factors used to decide whether a case should be overruled, rather than modified or left alone under the rule of stare decisis.
Stare decisis is the principle that prior decisions should be followed. It’s a fundamental principle in the development of the Common Law, which is the basis for our legal system. In their confirmation hearings, Alito, Gorsuch, Kavanaugh, and Barrett all testified that they accepted stare decisis as a principle governing their jurisprudence. I assume Roberts accepts it, and am less sure about Thomas. Barrett articulated her views about stare decisis and originalism in this article:
The claim that the original public meaning of constitutional text constitutes law is in some tension with the doctrine of stare decisis. Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases. But what happens when precedent conflicts with the original meaning of the text?
Whatever they told Senators didn’t hold up well in practice. Stare decisis just doesn’t matter to these six in politically charged cases. Cook and Slaughter are two examples, but perhaps the best known is Dobbs v. Jackson Women’s Health Organization, the case that overruled Roe v. Wade. Alito wrote:
In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.
The words that follow are merely the substitution of Alito’s opinion for Harry Blackmun’s. Alito doesn’t like the reasoning, thinks it is founded on a serious “error”, thinks the rule is not workable, and misstates the nature of the last two factors. It’s a simple case of changes in members of SCOTUS producing changes in outcomes, a raw exercise of power.
Roberts doesn’t address any of Alito’s first four factors as such. He says it was always a problematic case.He claims Humphrey’s Executor was wrong, on the grounds that the Constitution vests the executive power of the government in the president. That must, he claims, includes the power to fire people at will. He doesn’t explain why. He merely substitutes his pet theory of the unitary executive for two centuries of contrary and more nuanced cases. He says it’s out of step with other decisions, without mentioning that almost all of those decisions are grounded in the unitary executive theory. He doesn’t admit that the unitary executive nonsense was generated by the Federalist Society in the early 1980s.
Roberts says that appellee Slaughter’s reliance argument is based on the creation of agencies with leaders with protected tenure after Humphrey’s Executor. He claims that the rationale for that reliance is false. That fails to account for the fact that many agencies were created with this protection starting with the founding, as Menand shows. Congress didn’t have to explain its decisions to SCOTUS back then. He claims that this protected tenure gives Congress too much power, which is bad.
The underlying dangers
What happened here is that the notion of “reliance” is limited to the bare act of legislating. In the same way, in Dobbs Alito says reliance applies only a tiny number of women pregnant at the date of the opinion. Wpmen who might become pregnant later can’t rely on Roe v. Wade. That’s part of what’s really wrong in both cases. In Dobbs, the issue isn’t any specific woman’s right to control her body. The liberty acknowledged in Roe v. Wade is foundational to the way women participate in our society, and therefore we all rely on it. After Dobbs women’s ability to participate fully in our society was disrupted, and their health was endangered, as was predicted. Here’s a small example: many parents urge their daughters not to attend the college of their choice if it’s in an anti-woman state.
In the same way, allowing the president to fire people for no reason radically restructures the way our government has worked for centuries. Among other things, it means that we have no continuity in many crucial areas such as climate change and labor conditions. It means that the president can use the power of those agencies for personal gain and for punishing his perceived enemies, all without any accountability thanks to the obscene decision in Trump v. US.
Worse, Roberts doesn’t even ask himself if the tenure clause is integral to the statutory scheme. Would Congress have created the FTC or the EPA the same way if it weren’t for Humphrey’s Executor? Why doesn’t the loss of protected tenure mean that the entire statute is unconstitutional? Obviously that would be insanely disruptive, so Roberts is afraid to try to explain.
Perhaps the worst problem is the reality check. It’s bad enough that the Roberts majority has changed the balance of power and reshaped our government to suit their personal preference. But to give the power to Trump is dangerous to the nation and the world. It’s a crime against democracy.
Impeach all six.
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