The Supreme Court held a crucial hearing Monday on whether presidents have the power to fire heads of independent federal agencies and whether to overturn a 1935 precedent that has bolstered protections from removal for almost a century.
The court’s forthcoming ruling in Trump v. Slaughter carries dramatic implications for the modern workings of government, which Justice Sonia Sotomayor said on Monday that the administration wants to “destroy.”
Here are three takeaways from the oral argument in the case that stems from President Donald Trump’s firing of Rebecca Slaughter, a Democratic member of the Federal Trade Commission, without cause.
The Trump administration will win
The likely outcome was clear coming into the hearing, but the Republican-appointed justices’ questions and comments at the hearing seemed to confirm it. There were no surprises in that regard.
The precise rationale and language of the court’s ruling is to be determined — the justices themselves might not know yet exactly what it will look like.
But whatever the court will write in its ruling about the 1935 Humphrey’s Executor precedent — which Chief Justice John Roberts called a “dried husk of whatever people used to think it was” — the hearing reinforced that the majority is determined to expand presidential power further, as it has done throughout Trump’s second term.
The court doesn’t care about “destroy[ing] the structure of government” — at least not in the way that Sotomayor is worried about
Early in the argument, Sotomayor told U.S. Solicitor General John Sauer, “You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.”
Sauer disagreed. He argued that he was asking the court to restore what he understood as the proper structure of presidential power — a vast one that the majority of the justices seem inclined to agree with, at least on some level.
Sauer is the lawyer who argued the presidential immunity case last year on Trump’s behalf. That case, in which the majority granted Trump substantial criminal immunity, came up several times during Monday’s hearing, highlighting the court’s prioritization of presidential power over other values.
Expect to see that view reflected in the Slaughter decision.
The Federal Reserve may be safe, or safer than other agencies
This case involves the FTC. But the hearing underlined its consequences for all sorts of agencies if Trump wins the power he seeks.
In particular, his quest to further consolidate power in the White House has raised questions about the fate of Federal Reserve independence, which is at issue in another case the court is set to hear next month in Trump v. Cook, named for Fed governor Lisa Cook, whom Trump also sought to remove in his federal firing spree.
Earlier this year, the high court majority signaled its intention to carve out special protections for the Fed. That led Justice Elena Kagan to point out then that the majority’s intended carve-out is concocted in an effort to avoid the potential economic disaster risked by granting greater presidential power over that key agency, too.
Justice Brett Kavanaugh brought up the Fed at Monday’s hearing, giving Sauer the chance to respond to the claim that his position would undermine the central bank’s independence. Though Sauer took a maximalist view of presidential power throughout the hearing, he responded to Kavanaugh by noting what the court said earlier this year in its carve-out about the Fed having a unique status.
The issue will come into sharper focus at next month’s hearing in Cook’s case. Figuring out how to protect the Fed while granting new presidential firing powers over other agencies could loom large in resolving both cases, the rulings in which are expected by early July.
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