Antonin Scalia’s Last Laugh?

Justice Antonin Scalia could earn a measure of posthumous vindication as early as this week when the Supreme Court rules in cases that bear on the scope of presidential power. The high court is weighing whether presidents have the authority to fire for any reason the leaders of executive branch agencies, or if these officials are protected by laws that say they can only be terminated for cause. The Great Scalia took an expansive view of presidential power.Reason magazine’s Damon Root suggests that if President Trump prevails in this, “as many legal observers think he probably will,” then “a 1988 dissenting opinion by a famous conservative justice is likely to play a key supporting role.” That’s a reference to Scalia’s dissent in the case of Morrison v. Olson. That was a dispute, Mr. Root notes, over the constitutionality of so-called independent counsels, which Scalia saw as a breach of the separated powers.The law in question in Morrison v. Olson authorized “a special kind of federal prosecutor,” per Mr. Root, “who would be tasked with investigating and prosecuting alleged crimes committed by executive branch officials.” Critics argued that this “placed certain executive authorities beyond the immediate reach of the chief executive,” Mr. Root adds. A majority of the justices ruled in favor of the law. Yet Scalia, Mr. Root reckons, “writing alone in dissent” presented “a very different view of the matter.” Article II of the Constitution assigns the powers of the executive branch to the president and only the president, Scalia reckoned, in an appraisal that is summed up in legal shorthand under the rubric of the Unitary Executive. As Scalia put it: “This does not mean some of the executive power, but all of the executive power.” Though Scalia’s view did not carry the day in 1988, the high court to a large degree appears to be coming around to his line of reasoning when it comes to presidential power. This can be seen in the sharpest relief in a dispute before the Nine involving a member of the board of the Federal Trade Commission, Rebecca Slaughter. Mr. Trump has fired Ms. Slaughter not for cause, but because he intends to put his stamp on the regulatory agency.The solicitor general, John Sauer, told the justices that letting Mr. Trump fire Ms. Slaughter would right the Constitution’s balance of powers. This balance has been thrown off by decades of Democratic efforts to create purportedly independent executive agencies, like the Fed or the FTC, that are outside of presidential control. Yet the high court’s duty, Mr. Sauer averred, is “to ensure that the executive branch is overseen by a President accountable to the people.”When Trump v. Slaughter was argued before the high court, several conservative justices appeared sympathetic to Mr. Sauer’s line of argument. A victory for Mr. Trump in Slaughter would also accord with the precedent set in a 2020 case, Seila Law v. Consumer Financial Protection Bureau. That decision, by Chief Justice Roberts, holds that federal agency chiefs and executive branch decision-makers “must be removable by the President at will.” The chief justice added that “without such power, the President could not be held fully accountable for discharging his own responsibilities.” By the same logic, though, wouldn’t presidents have power to fire at will governors of, say, the Federal Reserve, which is, after all, a Progressive-era agency of the same stripe as the FTC? Yet in arguments over Mr. Trump’s attempt to fire a Fed governor, Lisa Cook, the justices seemed less receptive.The prospect of a proverbial split decision is one for which to watch as the Supreme Court’s term moves toward its close. Yet it’s the Slaughter case that looks more likely to align with Scalia’s reasoning on presidential power. Or as Mr. Root puts it, if Mr. Trump succeeds “in his efforts to fire Slaughter from the FTC, don’t be surprised when the long shadow cast by Scalia’s nearly 40-year-old dissent is visible in the Court’s decision.”

Antonin Scalia’s Last Laugh?

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