SCOTUS overturns Humphrey's Executor

This morning, the Republicans on the US Supreme Court overturned a 90-year precedent that had prevented the president from firing civil servants from nonpartisan agencies (except, wouldn't you know, the Federal Reserve):

The Supreme Court on Monday gave President Donald Trump sweeping new authority over approximately two dozen multi-member agencies that Congress intended to be independent. By a vote of 6-3, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of “inefficiency, neglect of duty, or malfeasance in office.” That law, a majority of the justices ruled, violates the constitutional separation of powers between the three branches of government. And in reaching that decision, the court overruled its 91-year-old decision in Humphrey’s Executor v. United States, which had upheld the law at the center of the dispute.

More broadly, Monday’s decision was a major victory for proponents of the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers.

Writing for the majority, Chief Justice John Roberts contended that “the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

Justice Sonia Sotomayor penned a 49-page dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson. “Today,” she wrote, “the Court discards” the “democratic regime” created by the Constitution “in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result,” she concluded, “is a President who emerges with far greater power than ever before.”

With this decision, the Court has lurched even farther to the right than since the 1920s. As Paul Krugman laments, this gives the President dangerous authority to reshape the agencies that are supposed to safeguard us from the kinds of corruption and incompetence on display in other countries:

In order to drive your car around you need to have a set of stable traffic rules, not a situation in which a police officer can decide you broke the law and the other guy did not because I say what the law is. And especially not where the police officer does that based upon who’s been paying him off or who he expects to be paid off.

The real world is far more complex than traffic rules but we need those rules and we need some stability and those rules cannot be specified with every letter, every punctuation mark set by Congress. The world is too complicated and changes too much. You need to have standing ethos, standing doctrine at the agencies that make modern life possible.

And remember, with this decision the Court is empowering this president. Do you think they'll leave this power in place when we get a new president in 2½ years? Ha!

[I]t is more or less assumed now that any law, prohibition, or imperative assumed or embraced by Democrats goes up for review by the Court as though it were some kind of Guardian Council or perhaps more aptly an upper legislative house like the House of Lords.

What we have today as part of the openly partisan nature of the Court is that really every major exercise of power by Democrats comes up for review, in many cases where there is not even an existing Federalist Society/conservative legal movement doctrine in play. I would argue that this begins with the Obamacare decision in 2012.

At the time, the “surprise” decision to uphold the Obamacare individual mandate, largely the decision of John Roberts, was seen as a near miss or evidence of Roberts’ institutionalism. In retrospect, it is perhaps better seen as a latter-day version of Marbury v Madison, in which Chief Justice John Marshall cleverly rendered a decision that was of immediate benefit to his partisan opposition in order to entrench the general and empowering principle of judicial review. In the Obamacare case, Roberts allowed the individual mandate to remain (while striking down, on the basis of essentially nothing, Medicaid expansion) in order to lull constitutionalists into accept and even celebrating the purported institutionalism of a Court that would now sit in review of every law passed by Democrats.

There’s simply no future for real democratic self-government in the United States with this corrupt Court in place.

We will eventually get rid of this Court's corrupt majority. I just hope we can start right away in January 2029. Or perhaps even earlier if we win the Senate this fall.