The Supreme Court pulled off another shadow docket masterpiece this week, granting Trump’s request to keep FTC Commissioner Rebecca Kelly Slaughter fired while simultaneously pretending they haven’t already made up their minds about whether presidents can ignore 90-year-old Supreme Court precedent. What makes this particularly brazen is that the Court is allowing Trump to violate existing law while his challenge to that law is still pending—exactly the opposite of how preliminary relief is supposed to work. It’s a neat trick: use the emergency docket to give Trump exactly what he wants, then schedule oral arguments in December to maintain the fiction that this is all very serious legal deliberation.
As we covered earlier this month, the DC Circuit had the audacity to follow binding Supreme Court precedent when it reinstated Slaughter to her position. The court’s mistake was apparently believing that Humphrey’s Executor v. United States from 1935—where a unanimous Supreme Court told FDR he couldn’t fire FTC commissioners at will—remained good law until explicitly overturned.
Silly lower courts, thinking precedent means something.
The Supreme Court wasted no time correcting this error in judgment, issuing a stay Monday morning with zero explanation, effectively telling Rebecca Slaughter she’s out of a job until the Court gets around to formally trashing nearly a century of precedent sometime after December oral arguments.
Justice Elena Kagan, joined by Justices Sotomayor and Jackson, wasn’t having it. Her dissent cuts right to the heart of what makes this so legally absurd:
On top of granting certiorari before judgment in this case, the Court today issues a stay enabling the President to immediately discharge, without any cause, a member of the Federal Trade Commission (FTC). That stay, granted on our emergency docket, is just the latest in a series. Earlier this year, the same majority, by the same mechanism, permitted the President to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission.
Kagan points out that Congress explicitly prohibited each of these removals. The FTC Act bars the President from firing commissioners “except for inefficiency, neglect of duty, or malfeasance in office.” Trump fired Slaughter because she’s a Democrat, not because of any of those reasons. Under current law, that’s illegal. Full stop.
But the majority doesn’t care about current law when Trump wants something:
Yet the majority, stay order by stay order, has handed full control of all those agencies to the President. He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence.
The legal principle at stake here is pretty basic: when you’re challenging existing law, you don’t get to ignore that law while your challenge is pending. That’s the whole point of courts being able to issue stays. You maintain the status quo until the court decides whether the law is constitutional.
But apparently that principle doesn’t apply when Donald Trump really, really wants to fire someone:
I dissented from the majority’s prior stay orders, and today do so again. Under existing law, what Congress said goes—as this Court unanimously decided nearly a century ago. In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), we rejected a claim of presidential prerogative identical to the one made in this case. (Indeed, the suit emerged from a discharge at the very same agency.) Congress, we held, may restrict the President’s power to remove members of the FTC, as well as other agencies performing “quasi-legislative or quasi-judicial” functions, without violating the Constitution. Id., at 629. So the President cannot, as he concededly did here, fire an FTC Commissioner without any reason. To reach a different result requires reversing the rule stated in Humphrey’s: It entails overriding rather than accepting Congress’s judgment about agency design. The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him.
The only thing that’s different from when Humphrey’s Executor was decided is that this Supreme Court apparently thinks Trump should get whatever Trump wants.
The most damning part of Kagan’s dissent is how she calls out the majority for using the emergency docket to reshape constitutional law:
Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.
This gets to something we’ve been tracking all year: the Court’s systematic use of the shadow docket since the inauguration to hand Trump unprecedented power over the federal government. They’re not just breaking precedent—they’re breaking the normal process for breaking precedent.
As Madiba Dennie at Balls and Strikes puts it:
In more and more decisions, the Supreme Court is overruling judges who are literally just applying the law as it is written, and has long been interpreted; Justices Neil Gorsuch and Brett Kavanaugh are even scolding judges for failing to anticipate which precedent the Court will stuff in the garbage next. The justices’ handling of Slaughter is again telling lower court judges not to do as the Court has said, but to do what everyone knows the Court wants to say. And increasingly, what the Court wants to say is, “Whatever Trump wants goes.”
Mark Joseph Stern at Slate captures the broader implications nicely:
It is bad enough that the court is clearly planning to let Trump construct the most submissive executive branch in history by purging his opponents from federal agencies. What’s worse, though, is that the supermajority has ushered in this new era of autocratic presidency over the shadow docket, offering almost no public explanation for its radical moves.
Here’s the thing that’s particularly galling: the Court could have easily said “we’re taking this case and we’ll decide it quickly, but in the meantime, existing law applies.” That would have meant Slaughter keeps her job until they rule (as both lower courts said, following the precedent). Instead, they chose to give Trump exactly what he wants while the case is pending, effectively deciding the case before they’ve heard arguments.
The stay also raises another troubling question. The Court asked the parties to brief whether federal courts can even “prevent a person’s removal from public office” at all. If they rule that courts lack this power entirely, then Trump could fire anyone from any agency and the judiciary would be powerless to stop him, even when the firing clearly violates federal law as per Congress.
As Stern writes, this would complete Trump’s takeover of the administrative state:
Should the supermajority strip courts of this authority, then the Fed’s independence will vanish completely: Even if Trump fires its members illegally, the judiciary will have no ability to put them back in office. It is increasingly difficult to avoid the conclusion that the Supreme Court is dismantling every guardrail that separates democracy from dictatorship.
The DC Circuit got this right in their ruling two weeks ago. They followed binding precedent and put Slaughter back in her job, while acknowledging that the Supreme Court would probably reverse them soon. They did their job—applying the law as it exists, not as they think it might exist after Trump’s Court gets done with it.
But apparently following binding Supreme Court precedent is now grounds for immediate reversal by… the Supreme Court.
The Court will hear arguments in December, and everyone knows how this ends. They’ll almost certainly overturn Humphrey’s Executor, give Trump the power to fire any federal official he wants, and pretend this was all a very serious exercise in constitutional interpretation rather than a predetermined outcome delivered through procedural gamesmanship.
Until then, Rebecca Slaughter remains illegally fired, and the Court’s emergency docket continues to serve as Trump’s personal fast-track to unlimited executive power.
Precedent was nice while it lasted.
The most disturbing part isn’t even that they’re planning to overturn Humphrey’s Executor—it’s that they’re so eager to help Trump that they can’t even wait for the formality of actually doing it.
From Techdirt via this RSS feed