Will the Supreme Court constrain the wild Trump?

I wouldn’t bet on it.

Friends,

It is well to remind ourselves that today is Presidents Day, not Dictators Day.

Of all the things the framers of the Constitution worried about, their biggest worry was that a president would become as powerful as a king. Which is why they created Congress and the judiciary — to check and constrain him.

Fast forward to the first Gilded Age of the late 19th century, when inequalities of income and wealth had become so extreme that the so-called “Robber Barons” of the era (think Elon Musk, Jeff Bezos, and Mark Zuckerberg) controlled the economy, and corruption was rampant. (I say “first” Gilded Age because we are now clearly in the second.)

Reformers of that era created an income tax to try to limit the Robber Barons’ incomes, caps on corporate campaign expenditures to limit their political reach, and independent regulatory agencies to limit their power. The Federal Trade Commission, for example, was established as an independent agency in 1914, to take on corporate monopolies and fraud.

Fast forward again to today. There are by now 19 independent regulatory agencies, including the Securities and Exchange Commission, the Federal Reserve, the Commodity Futures Trading Commission, the National Labor Relations Board, the Federal Deposit Insurance Corporation, the Consumer Financial Protection Bureau, and the Office of Special Counsel.

These independent agencies, staffed with experts, have become a major countervailing power to the political clout of large corporations.

But I fear that the Supreme Court is about to end their independence.

On Sunday, White House lawyers asked the justices to allow Trump to fire the head of an independent watchdog agency. It’s the first case arising from the blizzard of actions taken by Trump in the early weeks of the new regime to reach the Supreme Court.

The White House’s emergency application asks the Supreme Court to vacate a federal trial judge’s order temporarily reinstating Hampton Dellinger, head of the Office of Special Counsel.

The Office of Special Counsel — a little-known but important independent agency — enforces federal whistleblower laws, which protect whistleblowers from political retribution, and the Hatch Act, which prohibits federal employees from engaging in most political activity.

In the 1978 law that established the Office of Special Counsel, Congress gave the counsel a five-year term and provided that they could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”

But Trump’s one-sentence email to Dellinger on February 7 gave no reasons for firing him, effective immediately.

Dellinger sued. He called his removal illegal and argued that nothing about his performance could possibly meet the standard Congress laid out for dismissing a special counsel:

“Since my arrival at OSC last year, I could not be more proud of all we have accomplished. The agency’s work has earned praise from advocates for whistleblowers, veterans, and others. The effort to remove me has no factual nor legal basis — none — which means it is illegal.”

Since February 7, Dellinger has continued to police the government against Hatch Act and whistleblower violations — even when they have involved federal workers who allegedly discriminated against Trump. (In a complaint filed last Tuesday, Dellinger alleged that, during a hurricane response in October, an aid supervisor for the Federal Emergency Management Agency illegally instructed FEMA workers not to visit homes with Trump signs.)

Last Monday night, Judge Amy Berman Jackson of the Federal District Court in Washington issued a temporary restraining order blocking Trump from firing Dellinger.

Judge Jackson wrote that the 1978 law “expresses Congress’s clear intent to ensure the independence of the special counsel and insulate his work from being buffeted by the winds of political change,” adding that the government’s “only response to this inarguable reading of the text is that the statute is unconstitutional.”

On Saturday, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected Trump’s emergency motion for a stay of Judge Jackson’s ruling. The unsigned majority opinion said the government’s motion was premature.

“The question here is not whether the president is entitled to prompt review of his important constitutional arguments. Of course he is. The issue before us is whether his mere claim of extraordinary harm justifies this court’s immediate review, which would essentially remove the legal issues from the district court’s ambit before its proceedings have concluded.”

In its Sunday filing before the Supreme Court, the White House said the Supreme Court “should not allow lower courts to seize executive power by dictating to the president how long he must continue employing an agency head against his will.” Translated: Congress cannot limit the president’s power to fire heads of independent agencies.

Make no mistake. This is a fundamental challenge to the basic idea — part of the fabric of our government for well over a century — that Congress has the power to create independent agencies.

Trump’s emergency application took direct aim at a precedent from 1935 in which the Supreme Court unanimously ruled that Congress can shield independent agencies from politics.

That case, Humphrey’s Executor v. United States, concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office” — the same language that Congress used decades later to protect the special counsel.

Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey, arguing only that Humphrey’s actions were not aligned with the administration’s policy goals. The Supreme Court held that the firing was unlawful and the law establishing the independence of the Federal Trade Commission was constitutional.

Fast forward again. The Roberts Supreme Court doesn’t like independent regulatory agencies. Most of the current justices subscribe to what’s called the “unitary executive” theory, a bonkers notion that the framers intended for a president to have total control over every aspect of the executive branch.

In 2020, the Roberts Supreme Court laid the groundwork for reversing Humphrey’s Executor in a case involving the Consumer Financial Protection Bureau. The law that created the bureau — again, using language identical to that at issue in Humphrey’s Executor and in Dellinger’s case — said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”

In a 5-4 decision, the Supreme Court struck down that provision, ruling that it violated the separation of powers and that the president could remove the bureau’s director for any reason. Roberts, writing for the majority, said the presidency requires an “energetic executive.” He continued:

“In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”

Two justices — Clarence Thomas and Neil M. Gorsuch — would have pulled the plug on independent agencies then and there. Thomas wrote:

“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people. With today’s decision, the court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”

Justice Elena Kagan, writing for what were then the court’s four liberals, dissented, saying the Constitution did not address the scope of the president’s power to fire subordinates. Congress should therefore be free, she said, to grant agencies “a measure of independence from political pressure.”

That 2020 decision by the majority of the Supreme Court anticipated the Supreme Court’s decision last July that granted Trump, then a private citizen, immunity from prosecution for any “official” conduct during his first term.

So what now? I’m afraid the Trump White House and the Supreme Court have teed up the Dellinger case to mark the end of Humphrey’s Executor — and therefore the practical end of independent agencies. They may carve out the Federal Reserve on some pretext, but they are bent on centralizing presidential power.

I wish I could be more hopeful, but I honestly don’t see any other decision emerging from this high court.

Celebrate Presidents Day today, not Dictators Day. And don’t, whatever you do, give up hope. This is all part of democracy’s stress test. I guarantee that eventually democracy will come out stronger for it.