The Supreme Court Monday announced it would take up a case that gets to the heart of why the deep state exists—it will revisit a precedent that defended the bureaucracy against the executive power vested in the president.
In Donald Trump v. Rebecca Kelly Slaughter, the Supreme Court blocked a lower court order forcing the president to re-hire a commissioner of the Federal Trade Commission after he had fired her in March.
On Monday, the Supreme Court announced that it wasn’t just allowing Trump to fire Slaughter until the case is resolved in court, but also that it would fully consider the case.
The court’s majority directed both parties to argue two central questions: “Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States (1935), should be overruled”; and “Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.”
Supreme Court Precedent: Humphrey’s Executor
In Humphrey’s Executor, the Supreme Court ruled that the Constitution allows Congress to enact laws limiting the power of the president to fire executive officials of an independent agency. President Franklin D. Roosevelt had fired William E. Humphrey, an FTC commissioner, over policy disagreements over economic regulation and the New Deal, even though the Federal Trade Commission Act of 1914 prohibited the president from firing a commissioner for any reason other than “inefficiency, neglect of duty, or malfeasance in office.”
Justice George Sutherland, who wrote the majority opinion, created a kind of Frankenstein’s monster out of the FTC. He ruled that the FTC was not a traditional executive agency under the Constitution—and thus not subject to the president’s authority under Article II—because it engaged in “quasi-legislative” and “quasi-judicial” functions.
“To the extent that it exercises any executive function—as distinguished from executive power in the constitutional sense—it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the government,” he wrote.
In other words, it was a defense of the FTC’s constitutionality that it combined the executive, legislative, and judicial functions—even though the Founders explicitly vested these functions in different branches of government to avoid tyranny.
Supreme Court ‘Shadow Docket’ Orders
Critics have long called for the Supreme Court to reverse this ruling, and the court’s previous “shadow docket” orders have suggested that it would indeed rein in the administrative state by doing so. (The “shadow docket” involves the court issuing expedited emergency orders outside its normal term and without the typical opinions explaining the court’s reasoning.)
Justice Elena Kagan dissented from the order, and the other two Democrat-appointed justices—Sonia Sotomayor and Ketanji Brown Jackson—joined her.
Kagan noted that the Slaughter case is “the latest in a series.” The Supreme Court had previously issued stays allowing Trump to fire members of the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.
Kagan wrote that the court’s “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 Supreme Court’s shadow docket rulings did not involve granting the president new power, however. Instead, they meant allowing the president to remove bureaucrats from their jobs while their legal battles continue.
The Supreme Court’s unsigned order in Trump v. Wilcox grounded a stay on the justices’ “judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
When the fired bureaucrats file a lawsuit and ask a court to order Trump to rehire them, the courts have to determine first whether to require Trump to rehire them during the case of litigation, and then whether to allow Trump to fire them permanently. The Supreme Court has repeatedly held that the harm to the government of forcing Trump to rehire them in the interim outweighs the harm to the bureaucrat of being unable to fulfill their duties during that same time period.
Now, however, the Supreme Court will take a key step to resolving the underlying issue. By taking up Trump v. Slaughter, the court seems likely to revisit Humphrey’s Executor, and may overturn this precedent.
This is more than an academic matter. An April poll suggests that as many as 75% of the Washington, D.C.-based bureaucrats who make $75,000 a year or more and who voted for Kamala Harris in November will oppose a lawful Trump order if they consider it bad policy. This suggests deep state opposition to Trump is widespread in the federal government and difficult to root out.
Critics will say overturning this precedent means giving Trump unlimited power, but it would really involve correcting a historic error and putting executive power back into the person whom the American people elect to wield it—the president of the United States.
