Supreme Court Nears Decisions on Trump’s Executive Power Involving Independent Agencies

The Supreme Court has only eight outstanding decisions in its current term, expected to end this week, but several will have a big impact on the extent of President Trump’s executive powers.Two of the cases involve independent federal agencies. The Trump administration asserts that the president has the right to fire the heads of those agencies.In December, justices heard arguments in Trump v. Slaughter, which challenged Mr. Trump’s firing of a commissioner of the Federal Trade Commission, Rebecca Slaughter. Ms. Slaughter, and the other Democrat on the panel, were informed via email that they were being removed from their positions.The emails contained a message from Mr. Trump stating, “Your continued service on the FTC is inconsistent with my Administration’s priorities. Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution.”Ms. Slaughter sued, claiming her firing was illegal because the message did not indicate that she was being fired for inefficiency, neglect of duty, or malfeasance in office, as required by Congress in the statute that created the agency. Lower courts agreed, and ordered her to be reinstated citing the 90-year-old Humphrey’s Executor v. United States precedent, which limits the president’s ability to fire officials at independent federal agencies except for cause.But the Trump administration says the president’s constitutional powers are wrongly limited if he is blocked from firing members of the executive branch.Solicitor General John Sauer argued the administration’s case, and called Humphrey’s a “decaying husk.” He added that the case was “grievously wrong when decided” and urged the justices to overturn it. The conservative majority of the Supreme Court appeared sympathetic to the administration’s argument.Justice Amy Coney Barrett agreed that Humphrey’s precedence has been eroded over time. Justice Neil Gorsuch suggested it was time to rein in agencies carrying out both legislative and executive tasks.Justice Brett Kavanaugh also appeared to accept most of the administration’s argument. “Broad delegations to unaccountable independent agencies raise enormous Constitutional and real world problems for individual liberties,” Justice Kavanaugh said.But the liberal justices warned of a dire outcome if the court ruled in favor of the Trump administration.“You’re asking us to destroy the structure of government,” Justice Sonia Sotomayor told Mr. Sauer. “Once you’re down this road, it’s a little bit hard to see how you stop,” Justice Elena Kagan added.The Supreme Court has previously allowed Mr. Trump to fire members of the National Labor Relations Board and the Consumer Product Safety Commission. In those firings, the Supreme Court issued orders staying lower court rulings without judging the merits of the firings.An American Enterprise Institute senior fellow, Adam White, told SCOSTUSblog that, after hearing oral arguments in the case, he thinks the justices will allow Ms. Slaughter’s firing but may not overturn the Humphrey precedent, saying it didn’t apply in her firing.The other case involving independent agencies, Trump v. Cook, centers on Mr. Trump’s attempted removal of Lisa Cook from the Federal Reserve’s board of governors. The president says he was justified in her removal because of claims she committed mortgage fraud. Ms. Cook has denied the fraud claims and she has never been charged with any crime.Ms. Cook, who was confirmed by the Senate for her seat, said in a filing that her removal could risk “shock waves in the financial markets that could not easily be undone.”The Department of Justice argued that Ms. Cook’s contention and the lower court’s finding that she is entitled to civil service protections is not reconcilable with the president’s removal authority. Citing Mr. Trump’s vast powers as president, justice department lawyers argued that judges had no right to review his firing of Ms. Cook at all.Justices have previously suggested that the Federal Reserve may have more independence than other agencies, so they could allow Ms. Slaughter’s firing to stand but stipulate the decision is not broad enough to cover the Fed or Ms. Cook’s case.During arguments for the Slaughter, Justice Kavanaugh did express “concerns” about the Slaughter case’s potential impact on the Federal Reserve.University of Chicago law professor William Baude said this month that he believes that the high court is likely to rule against the administration in effort to remove Ms. Cook because she has not been afforded much process to defend against a firing that “looks pretextual.”Two other cases center on another Trump administration priority — blocking transgender athletes. With Little v. Hecox, justices will decide whether laws blocking biological males from participating in female sports violate the equal protection clause of the 14th Amendment. West Virginia v. B.P.J. asks whether Title IX prevents a state from limiting sports teams based on biological sex at birth, and also whether the equal protection clause of the 14th Amendment prevents such designations.Other pending decisions relate to whether states can count mailed ballots that are received after election day, if geofence warrants violate the Fourth Amendment, and if Mr. Trump’s efforts to limit birthright citizenship are constitutional.The Supreme Court traditionally goes into recess at the end of June but sometimes they go into early in July to wrap up releasing decisions. The federal holiday for Independence Day will be marked on Friday, giving the justices only four workdays if they want to finish this week.

Supreme Court Nears Decisions on Trump’s Executive Power Involving Independent Agencies

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