I hoped, as I’m sure you did, that the Supreme Court might be a moderating force during Trump’s second term, even though he appointed three of its 6-members Republican majority. Back in the day, conservative Republicans were not extremists. They respected the rule of law and the Constitution.
But the Roberts Court is turning out to be a patsy for MAGA extremism and an all-powerful executive branch.
The Republicans on the Court claim to be “originalists” and “textualists,” rendering every decision with fidelity to the Constitution.
But now we can say with certainty that the six-member reactionary majority will reliably give Trump whatever power he wants.
If the Founders were united on one principle, it was the balancing of power among the three branches: the President, the Congress, and the Judiciary. No one of them was to reign supreme.
And yet the Roberts Court has allowed Donald Trump to run roughshod over the Congress, the Judiciary, even the law.
Trump and his handlers have spent six months assuming the powers of Congress, especially the power of the purse. and ignoring the laws passed by Congress.
The Supreme Court has approved his mass firings, even those firings that resulted in the elimination of Departments, agencies, and functions written into law by Congress. SCOTUS greenlighted his seizure of USAID and approved his evisceration of the Education Department. SCOTUS disregarded the fact that the President cannot abolish functions authorized by Congress without Cingressional approval.
If Trump and his handler want to take control of an agency or abolish it, the Suprreme Ciurt gives him a thumbs up.
His disregard for law and norms began with his mass firing of Inspectors General. These are the high-level, nonpartisan ombudsmen in every department who guard against waste, fraud, and abuse. Gone.
Then he peremptorily fired members of independent agencies and boards who were appointed for a set term and cannot be fired for any reason other than malfeasance and neglect of duty. These independent bodies were supposed to be insulated from partisan politics. Trump ignored the safeguards and began firing Democrats, on grounds that they would not support his agenda.
Trump fired Gwynne Wilcox as chair of the National Labor Relations Board (NLRB) and Cathy Harris as chair of the Merit Systems Protection Board (MSPB). The two women were appointed by Biden. Lower courts enjoined their firing, but the DC Court of Appeals said it was ok for Trump to remove them.
NPR said:
These agencies and many others have historically operated with a degree of autonomy granted by Congress. Their structure, with Democratic and Republican members serving staggered terms, has helped ensure some distance and independence from the White House.
Members are nominated by presidents and confirmed by the Senate. But in creating those agencies, Congress held that presidents can only fire members for cause, such as neglect of duty or malfeasance.
In 1935, the Supreme Court upheld those limits on the president’s power in a case known as Humphrey’s Executor about another independent agency, the Federal Trade Commission. Now the future of that 90-year-old decision is highly uncertain.
In March, Trump fired the two Biden appointees on the Federal Trade Commission, Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter. His letter of ouster said that the commissioner’s “continued service on the F.T.C. is inconsistent with my administration’s priorities.”
Trump removed Christopher Hanson, a former chairman of the U.S. Nuclear Regulatory Commission. Hanson said he was removed without cause, flatly contradicting the law and precedent.
Democracy Docket reported on the Supreme Court decision released this week, which gave its approval to Trump’s firing of the Democratic members of independent agencies. The majority did not write an opinion. The dissenters did.
The U.S. Supreme Court granted President Donald Trump’s emergency request to fire members of the Consumer Product Safety Commission (CPSC) without cause. The ruling allows Trump to proceed with his purge of three Democratic CPSC commissioners and replace them with appointees of his choosing, despite federal law requiring “neglect of duty or malfeasance” for removal.
In a dissent, Justice Elena Kagan wrote that the decision allows for “the permanent transfer of authority, piece by piece by piece, from one branch of Government to another.”
The court, in a 6-3 vote, blocked a lower court ruling Wednesday that reinstated the fired commissioners, siding with Trump and halting the lower court’s enforcement of statutory protections.
In its ruling, the Court cited a similar decision from May, Trump v. Wilcox, which allowed Trump to remove Democratic members of the National Labor Relations Board.
“The stay we issued in Wilcox reflected our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer,” the Court wrote. “The same is true on the facts presented here.”
Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, issued a blistering dissent accusing the majority of upending nearly a century of legal precedent that protects the independence of federal agencies – all without full briefing, oral argument or a decision on the merits.
“Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress,” Kagan wrote.
Kagan mocked the stacking of precedent with no clear rationale, noting that the court’s only justification was its previous order in Wilcox.
“Next time, though, the majority will have two (if still under-reasoned) orders to cite,” Kagan added. “Truly, this is turtles all the way down.”
Anthony Michael Kreis, a law professor at Georgia State University, recently told Democracy Docket that in not offering explanations, the Supreme Court is damaging its own authority.
“The power of the Court is its judgment. It doesn’t have the power of the purse nor the power of the sword,” Kreis said. “So, when six justices fail to explain the Supreme Court’s rulings and let major changes in the federal government’s structure go forward that appear to be inconsistent with the law, one must ask why?”
The CPSC was designed by Congress to be bipartisan, with five members serving staggered terms. By law, the president cannot remove commissioners without cause and no more than three of the Commissioners can be affiliated with the same political party.
The same structure governs other independent agencies like the Federal Trade Commission, Securities and Exchange Commission and Federal Communications Commission. Trump’s firings — now twice greenlit by the court — appear to break that model.
The justices did not rule on the case’s legal merits yet. But by staying the lower court’s ruling, the court effectively sided with Trump’s expansive view of executive authority while appeals proceed.
By allowing Trump to remove Democratic appointees on independent boards without cause, in direct violation of the law, the 6-member majority presents itself as a wing of MAGA. The majority is enabling a remarkable concentration of power in the hands of the President. The Imperial Presidency arrives, courtesy of the U.S. Supreme Court.
Assuming that the Democrats regain control of the White House in a future election, the Supreme Court has removed the guardrails that protect a balance of power.
Diane Ravitch's blog 