The Supreme Court cast its long-telegraphed death blow to independent agencies Monday, confirming that the president can fire at-will civil servants that were meant to be insulated from political backlash. In a second opinion, though, the Court gave the Federal Reserve a special carveout from this new reality.
The odd baby-splitting in the combination of Trump v. Slaughter and Trump v. Cook — both authored by Chief Justice John Roberts — reveals the right-wing Court’s priorities: It may be sanguine about the demolition of agencies mostly used to regulate big business and protect worker rights, but is far less willing to let President Trump take over the Fed and unleash global economic chaos.
In all, the decisions represent a major triumph for the unitary executive theory pushed by the legal right for decades, as the president will now have nearly the entire executive branch under his command. The Court had been steadily marching in this direction for years, hacking away at independent agency protections in different forms. Now a major 1935 precedent protecting agency leaders, Humphrey’s Executor, has fallen.
In Slaughter, the case that overturned Humphrey’s Executor and cleared the way for the president to fire members of non-Fed independent agencies, Roberts is joined in the majority by Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, with Justice Clarence Thomas joining all but one section. Gorsuch also wrote a concurring opinion. Justice Sonia Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.
In Cook, the case where the Court found the government unlikely to succeed in its attempt to fire Fed Governor Lisa Cook on trumped-up mortgage fraud charges, Roberts is joined by Justices Kavanaugh, Sotomayor, Kagan and Jackson. Kavanaugh and Jackson also wrote concurring opinions. Justices Thomas, Barrett and Alito all wrote separate dissents, with Justice Gorsuch joining in the last.
In his Cook concurrence, Kavanaugh hastened to point out that the Trump administration itself acknowledged the Federal Reserve’s specialness, seemingly trying to minimize the gulf between his position and that of his natural ally.
“The Government itself expressly ‘acknowledge[d]’ and did ‘not disput[e]’ that point in this case, even as the Government simultaneously (and successfully) argued that the for-cause removal protections for most independent agencies violate Article II,” he wrote.
Jackson chimed in with her concurrence to add that the Court didn’t even have to get to the merits to rule against the administration in this preliminary posture, since Trump can’t point to any real injury that would require immediate relief. Quoting herself from a prior dissent, she remarked that Trump’s inability to fire someone he wants to fire is “just another species of the far-fetched contention that the President [is] injured whenever he is prevented from doing as he wishes.”
This is a breaking news story that will be updated.
Read the rulings here:
Pass legislation ending all at-will employment in the federal gov’t and requiring contracts that include the protections from political bullshit. Actually, fuck it. They’ll just overrule anything because the goal is killing the federal gov’t in favor of an imperial presidency.
Country’s over. The question is and has been for the past several years: what do we building on its grave?
Why would any knowledgeable, educated and capable person consider a federal civil servant position? More importantly, we can now look forward to complete agency overhauls every 4 to 8 years purging institutional knowledge and expertise, radically revised policies and regulations (bad for business, bad for local government), and an overall downward force on the government’s ability to govern.
The Court reconciled these two decisions using the precedent established in the case of Fuck You v. Because Reasons.
THE GOAL. They want it to kill federal employment to kill the federal gov’t.
The lead is misleading. The Slaughter case does not “confirm that the president can fire at-will civil servants that were meant to be insulated from political backlash.” Rather, it held that in the case of members of independent agencies who are nominated by the president and confirmed by the Senate – Commissioners and Board members – Congress’ efforts to limit the president’s ability to fire them is a violation of the constitution’s separation of powers. (Why the Fed Board members are different is hard to discern, other than the conservative justices were nervous about bringing on a recession, which might affect their pensions). The ruling does not apply to ordinary civil servants, who do not make policy but merely implement it as directed and who cannot be fired except for misconduct or poor performance and who are entitled to an appeals process.
I agree that the two decisions issued today are unfortunate and hard to fathom, but they do not apply to the regular civil service.