Ilya Shapiro The Supreme Court Is Poised to Restore the President’s Executive Power Legal challenges to Trump’s firings open the door for a shift in the Court’s jurisprudence.
https://www.city-journal.org/article/supreme-court-trump-firings-executive-branch-power
Article II of the Constitution begins with a simple declarative sentence: “The executive power shall be vested in a president of the United States of America.” Those 15 words are at the heart of a key battle in the early days of the second Trump administration—and will likely be the basis for consolidating power in one individual over what has become the most important branch of government.
In his first month in office, President Trump has removed many officials, both high-ranking and middle-managerial, hoping to streamline government and wrest control of the permanent bureaucracy. Many of the dispatched employees have contested their removal in court. The dispute is partially about civil-service rules and, more consequentially, about the president’s ability to remove principal officers of so-called independent agencies, which themselves are a contradiction in constitutional terms.
These employees argue that their firings were unconstitutional because of a 90-year-old Supreme Court decision that protects heads of independent agencies (but not cabinet departments) from without-cause removal. That 1935 precedent, Humphrey’s Executor v. United States, held that agencies wielding “quasi-judicial and quasi-legislative” power can only get fired for incompetence or malfeasance, not mere presidential agenda-setting. In 1988, the justices extended Humphrey’s Executive to nearly all federal officials in Morrison v. Olson, over a fierce solo dissent by Justice Antonin Scalia, who argued that the presidential removal power was essential to checking government abuses and ensuring political accountability. Those decisions fueled the rise of the modern administrative state.
Over time, however, Scalia’s Olson dissent has increasingly been vindicated. Congress allowed the independent-counsel statute to expire in 1999. And in the 2020 case Seila Law v. Consumer Finance Protection Bureau, the Supreme Court found that the Morrison holding applied only to inferior officers—meaning the president could remove most, if not all, department heads. The Court, in a string of cases over the past 15 years, has read Humphrey’s Executor narrowly, refusing to let Congress restrict the president’s personnel power.
Along the way, the Court majority embraced the heart of the 1926 precedent that Humphrey’s abrogated, Myers v. United States. In that case, Chief Justice Wiliam Howard Taft wrote that the president’s removal authority was not only implicit in constitutional structure, but flowed from the text of Article II, and was the reading understood and approved by the First Congress. Consequently, Congress can’t limit the president’s ability to remove executive-branch officers that he or his predecessor had appointed with the Senate’s advice and consent.
That principle is why Acting Solicitor General Sarah Harris, the government’s head lawyer before the Supreme Court, notified the Senate earlier this month that “the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and the Department will no longer defend their constitutionality.” Harris’s letter represents the culmination of decades of work by the conservative legal movement to restore unitary executive power—which, contrary to media alarmism, has nothing to do with the scope of executive power and everything to do with how it is controlled. Because the Constitution vests the president, alone, with executive power, it is the president, alone, who wields power over all executive agencies.
A majority on the Court now seems set to return to that view. As Chief Justice John Roberts explained in Seila Law, Article II authority “generally includes the ability to remove executive officials,” a power that is necessary to ensure the accountable and effective execution of federal policy. (Indeed, another part of Article II requires that that president “take care that the laws be faithfully executed.”) Roberts warned that, without the power to remove executive-branch officers, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”
The Left is engaging in a fool’s errand by challenging Trump less on the constitutional substance of his policies—where he is on much surer ground than in his first term—but on his ability to lead the executive branch. Within a year or two, administration lawyers will enjoy having been thrown into this particular briar patch.
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