The ongoing influence of Chief Justice John Roberts and the Supreme Court's conservative majority has led to a significant shift in the balance of presidential power. This trend began long before Donald Trump took office and continues to evolve as the court prepares to hear a pivotal case that could overturn a long-standing precedent regarding executive authority.
On Monday, the Supreme Court will hear arguments in a case that calls for a reevaluation of a 90-year-old decision which has historically limited the powers of the presidency. As noted by liberal Justice Elena Kagan, the court's conservative justices appear eager to take action that could expand executive authority even further.
Under this conservative leadership, the court has already permitted Trump to dismiss a significant number of officials, defying the 1935 ruling established in Humphrey’s Executor. This landmark decision restricts the president from removing heads of independent agencies without just cause. Among those affected is Rebecca Slaughter, whose dismissal from the Federal Trade Commission is central to the current case.
During the early months of Trump's presidency, he attempted to fire officials from various independent agencies, including the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission. The only officials who have managed to retain their positions amidst these changes are Lisa Cook, a Federal Reserve governor, and Shira Perlmutter, a copyright official at the Library of Congress.
However, the court has indicated a willingness to treat the Federal Reserve differently from other independent agencies, as Trump has expressed intentions to remove Cook due to alleged mortgage fraud, which she vehemently denies.
The conservative legal movement has long targeted the Humphrey’s Executor decision, advocating for a broader interpretation of presidential power known as the unitary executive theory. This theory posits that all federal agencies within the executive branch should be directly accountable to the president, including the right to dismiss their leaders at will.
Justice Antonin Scalia's dissent in a 1988 case has become a cornerstone for conservatives advocating this view, stating that the president holds “all of the executive power.” Under Roberts’ leadership since 2010, the Supreme Court has progressively dismantled restrictions on the president's ability to terminate officials, culminating in a 2020 ruling that affirmed Trump's ability to fire the head of the Consumer Financial Protection Bureau.
Despite the court's current trajectory, legal historians argue that Roberts' interpretation of the unitary executive theory may not align with the historical context of Article II of the Constitution. Caleb Nelson, a law professor at the University of Virginia, contends that both the text and the historical understanding of executive power are more nuanced than the current court suggests.
Additionally, Professor Jane Manners from Fordham University, along with other historians, have submitted briefs to the court to shed light on the historical foundations of the removal power in the early years of the United States. Although she remains skeptical about the court's willingness to reconsider its stance, the arguments presented highlight the complexities surrounding presidential authority.
The legal team representing Slaughter aligns with historians' perspectives, asserting that limitations on Trump's firing powers are consistent with constitutional guidelines and U.S. history. The Justice Department argues that Trump should have the authority to remove board members in pursuit of his agenda, calling for the dismissal of the Humphrey’s Executor precedent.
In addition to the main question of presidential firing power, a secondary issue in the case could have repercussions for Cook. The justices are set to deliberate whether courts possess the authority to reinstate individuals who have been unlawfully terminated. Justice Neil Gorsuch has previously indicated that while fired employees may be entitled to back pay, reinstatement is less certain, potentially jeopardizing Cook's position.
As the Supreme Court prepares to hear arguments in January regarding Cook's continued employment amid her legal challenges, there is growing concern about the economic implications of expanded presidential powers over the leadership of the central bank.