President Trump has had a tumultuous week so far, what with his strange, inappropriate remarks about hating his opponents at Charlie Kirk’s memorial service to the bizarre press conference denouncing Tylenol and vaccines and then the downright unhinged speech before world leaders at the United Nations. He seems to be losing all inhibitions and can no longer read a room which were never his strong suits to begin with. But he did get some good news from his staunch allies on the Supreme Court. They once again used the so-called “shadow docket” to allow him to fire someone the law says he should not be allowed to fire. No doubt that felt very soothing. He is, after all, the man who ran for office shouting his reality show tag line, “you’re fired!”
Last March, Trump had fired two Democratic members of the Federal Trade Commission, Rebecca Kelly Slaughter and Alvaro Bedoya without cause. They sued the government on the basis of a landmark 90 year old Supreme Court case involving the firing of an F.T.C. commissioner called Humphrey’s Executor v. United States. That precedent had stated that when the Congress created the agency it intended that the president not to have the right to fire commissioners for any reason he chose and that ruling has held for nearly a century.
Bedoya dropped out of the case last June in order to seek other employment leaving Slaughter to carry on alone with the suit which demanded that she be given her job back. The lower courts all sided with her, citing the clear precedent in Humphrey’s Executor but this week the Supreme Court conservative majority accept Trump’s emergency appeal, ignored those lower court’s orders and instead ordered that Trump could fire her for now and they would hear the case on an accelerated timetable in December.
I don’t think you need to be a Supreme Court insider or a psychic to figure out which way they are going to go. After all, they couldn’t even bring themselves to allow the precedent to stand for a few more months until they could hear the case. They had to step in on an emergency basis to give President Trump the desperate relief he needs to be able to fire this woman.
Justice Elana Kagan, writing for the minority, pointed out that this is only the latest in a series of cases in which the majority has “has handed full control of all those agencies to the president…He may now remove — so says the majority, though Congress said differently — any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence.”
There is no other way to interpret their behavior so far and it shouldn’t come as too much of a surprise. Being believers in the Unitary Executive theory, they have all been champing at the bit for years for a president to aggressively push the boundaries so they could break all the pesky precedents that their predecessors had created to stifle the full measure of presidential power. Led by his legal handlers of the Federalist Society and the Heritage Foundation, Trump has been more than happy to oblige.
The Trump team may be ramshackle and chaotic in most ways but they know what they’re doing when it comes to their legal strategy. The timing and the choice of cases to push on an emergency basis has been meticulously planned to bring to the Supreme Court majority the cases they know they want to hear. Since they are all on the same page to begin with, it’s created a serendipitous synchronicity that has the White House feeling “ecstatic,” according to NBC News.
And why wouldn’t they be? Of the twenty eight cases on which the administration has asked the Court to rule on an emergency basis, they’ve only lost two. There are still a few pending and three have resulted in no decision. But all in all it has been almost a clean sweep.
The NBC report notes that there have been more that 300 cases filed against the administration so far which they believe indicates that the Trump’s team has been careful not to push the conservative court majority to take up cases they could conceivably see as a bridge too far. I really doubt that’s going to be a problem. If I had to guess I’d think a couple of them might nod weakly toward American ideals and uphold birthright citizenship since it’s so clear in the text of the 14th Amendment, but I suspect they will generally rule with Trump on even the most draconian authoritarian policies.
They haven’t seemed even remotely interested in the findings of the lower courts and even less interested in giving them any guidance as to how they are supposed to carry on. A good case in point is Justice Kavanaugh’s fatuous opinion that citizens need not worry that unidentified masked men under color of law demand they prove their citizenship because they will only be briefly inconvenienced. It just shows that in his cushy Supreme Court bubble he has no idea what is actually taking place in the streets of America. (Either that or he does know and just chooses to ignore the truth in order to advance a policy preference for deportations without the normal constitutional constraints.)
Trump’s Solicitor General, D. John Sauer, yet another of his personal lawyers elevated to a top job in the government, is a former law clerk of Justice Antonin Scalia and clearly has the conservative majority’s number. (For all we know he has their cell phone numbers too.) He’s actually very competent, having argued the immunity case that has given Trump pretty much free rein to openly conspire with his Justice Department to persecute his political enemies.
Some of the biggest cases are yet to come and they may be a little bit harder for the court to justify. They have agreed to hear the big tariffs case next month and if the speculation is correct that the Trump team has only brought the cases they are pretty sure the Court will decide in their favor, that’s bad news for the world economy. The Court had shown in an earlier case that they considered the Federal Reserve to have special status apart from other quasi-independent agencies which may indicate that they are less likely to rubber stamp the president’s assertion of an obscure emergency power to justify his extreme tariff policies. They may not be as enthusiastic about letting Donald Trump mess with rich people’s money as they are about usurping people’s civil liberties and the constitutional balance of power.
But for the most part, there is no longer any doubt that the Supreme Court is working hand in glove with the administration to expand the power of the president to something more akin to a king’s or a dictator’s. Whether they’re prepared to accept that those powers might one day be in the hands of someone with whom they are not so ideologically aligned is another story. If we’re lucky we will find that out in the not too distant future.
If the Democrats manage to win back power in the next couple of elections they must understand that “guardrails” are insufficient. We’re watching what happens when we rely on the good faith of extremists with lifetime appointments to guard our rights and freedoms. They must build a big, beautiful, legal wall to prevent this from happening in the future— and make MAGA pay for it.