If you’ve followed the Supreme Court’s recent presidential power cases, you know there’s no mystery surrounding the Court’s eventual decision in Trump v. Slaughter, a case asking if President Donald Trump may fire several high-ranking federal officials who are protected from being terminated by federal law.
All six members of the Court’s Republican majority are devout acolytes of the “unitary executive,” a legal theory that claims the president may fire nearly anyone who leads a federal agency. The specific question before the Court in Slaughter is whether the Constitution permitted Trump to fire Rebecca Slaughter, who previously served as one of five commissioners on the Federal Trade Commission.
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The Republican justices already concluded, albeit in a temporary order, that Trump may fire Slaughter in an order handed down in September. Though the justices heard oral argument in the Slaughter case on Monday morning, that argument is largely political theater preceding the Court’s inevitable decision that Slaughter may be fired permanently.
While on its face the Slaughter case is a case about presidential power, a few key justices signaled that they are comfortable giving Trump the power he seeks in this case because the Court will itself remain a check on the president.
The Court’s Republican majority, in other words, plans to remake the separation of powers among the three US branches of government into a kind of hierarchy. Under this new vision, Congress’s power to create “independent” agencies that enjoy some insulation from the president must yield to a more powerful executive. And the executive’s authority over these agencies must, in turn, yield to a more powerful Supreme Court.
Slaughter lets the Republican justices achieve a goal they’ve sought since the 1980s
Ninety years ago, in Humphrey’s Executor v. United States (1935), the Supreme Court held that Congress may sometimes create federal agencies, led by multimember boards, that act with a degree of autonomy from the president. Although the leaders of these agencies are typically nominated by the president and confirmed by the Senate, federal law forbids the president from firing these agency leaders simply because he disagrees with their policy views. By law, FTC commissioners may only be fired “for inefficiency, neglect of duty, or malfeasance in office.”
The “unitary executive” theory, meanwhile, claims that Humphrey’s Executor was wrongly decided. Proponents of this theory point to a line in the Constitution that states “the executive power shall be vested in a President of the United States of America.” As Justice Antonin Scalia wrote in an influential 1988 dissenting opinion, this line “does not mean some of the executive power, but all of the executive power” belongs to the president. And thus Trump must have the power to fire any agency leader who wields power that is “executive” in nature.