Knives out at Supreme Court in battle for executive power

WASHINGTON (CN) — The Supreme Court’s conservative supermajority appears likely to hand President Donald Trump a major win on executive authority after a contentious argument on Monday highlighted the stark ideological divides on the bench.

For over two and a half hours, the justices exchanged barbs over whether to overturn Humphrey’s Executor v. United States, a landmark precedent undergirding the independence of federal regulatory bodies. The liberal wing balked at throwing out nearly 100 years of precedent, suggesting that the high court would be ignoring the wisdom of their predecessors.

“All those justices in the past have been wrong and the current ones are right?” Justice Sonia Sotomayor, a Barack Obama appointee, asked dubiously.

While the Roberts court is accustomed to overturning precedent, Sotomayor said that the Supreme Court had never before disregarded a ruling that fundamentally altered the structure of the democratic system.

“You’re asking us to destroy the structure of government,” Sotomayor told U.S. Solicitor General John Sauer.

Under Humphrey’s Executor, presidential authority over regulatory commissions is limited. The president appoints board members who require Senate confirmation. Members then maintain for-cause removal protections, creating limited circumstances for their termination, such as misconduct.

Over the last two decades, the Roberts court has chipped away at Humphrey’s Executor, but the landmark ruling seemed headed for the graveyard after the justices gave Trump permission to terminate independent officials heading the National Labor Relations Board, Merit Systems Protection Board and Consumer Product Safety Commission.

In September, the conservative majority allowed Trump to ignore the 90-year-old ruling to terminate Federal Trade Commissioner Rebecca Slaughter. Monday’s arguments asked whether the high court should solidify Slaughter’s termination in a showdown over presidential power.

Appealing to her originalist colleagues, Justice Elena Kagan posited that, at the very least, all sides could agree that the founders wanted the powers of government separated. The Obama appointee appeared dismayed, however, when the Trump administration offered a caveat that, as she described, was really a fundamental contradiction.

Regulatory commissions like the FTC operate under the executive branch. But Congress gave these agencies legislative and judicial authorities in a bargain for their independence, Kagan said, warning against turning all of that authority over to the president.

“The result of what you want is that the president is going to have massive unchecked, uncontrolled power not only to do traditional execution but to make law through legislative and adjudicative frameworks,” Kagan said.

“The president is going to have all the executive power, which is what the Constitution dictates,” Sauer responded.

Justice Neil Gorsuch, a Trump appointee, appeared increasingly exasperated with Sotomayor and Kagan’s dire warnings that dominated the early portion of Monday’s argument. Gorsuch said that the framers also knew that every political actor seeks to enhance its own power.

“We all know that to be true from our own experiences,” Gorsuch said.

Drawing on Kagan’s bargain comment, Gorsuch said that the Supreme Court shouldn’t stand on the sidelines and allow Congress to give vast legislative powers to the executive.

“It seems to me all the more imperative to do something about it,” Gorsuch said, glancing down the bench toward Kagan.

As the argument dragged on, the justices’ questions seemed more geared toward rebutting each other than probing the advocates before them. Justice Brett Kavanaugh, another Trump appointee, countered Kagan and Sotomayor’s early warnings that a ruling for the administration could tank agencies like the National Labor Relations Board or the Merit Systems Protection Board.

“I want to make it crystal clear, that overruling or narrowing Humphrey’s Executorwould not threaten the existence of these agencies but only would alter how the heads of those agencies can be removed,” Kavanaugh said.

Justice Ketanji Brown Jackson hit back, dismissing the effort to downplay the consequences of the case. “Let me just also focus in on Justice Kavanaugh’s question,” the Joe Biden appointee said, stating that striking down for-cause removal protections carried significant risks.

“That would then, I think, open the door for each new president and clean house in terms of all of the individuals who are running that agency — notwithstanding their expertise and knowledge and experience,” Jackson said. “Presumably, the president could install whoever he wanted in those positions, and that, I think, creates risks.”

In the second half of the argument, the conservative wing clamored over the repercussions of barring the president from oversight of the executive branch. Chief Justice John Roberts, a George W. Bush appointee, suggested that Congress could strip presidents of control of executive departments, turning them into multimember commissions.

“Are there some cabinet departments that you say Congress could just take over?” Roberts asked Slaughter’s attorney. He said, hypothetically, Congress could create an agency for education that had the same powers as the Education Department but it would be run by a commission with limited presidential control.

“It strikes me,” Kagan interjected, “that the more realistic danger here is that we’ll have an Education Department as authorized by Congress, by law, that won’t have any employees in it.”

“I think that there’s one thing history shows, is we can’t anticipate what might happen,” Justice Amy Coney Barrett, another Trump appointee, retorted.

Slaughter said that a ruling for Trump would have real-world risks with dozens of agencies including the Federal Election Commission.

“Would anyone want those sensitive election-related determinations to be under the plenary control of a political actor?” Amitabh Agarwal, an attorney with the Protect Democracy Project, asked.

Despite their strong opposition, the three liberal justices were outnumbered by the conservative wing’s support for the Trump administration. But it was unclear after arguments how broad the high court’s ruling would be.

“The devil is in the details here,” Sauer said, noting that under a broad interpretation of presidential authority over the executive branch, “we would win this case and virtually every other case.” A narrow interpretation, Sauer said, would allow Congress to “reconstruct virtually the entire executive branch outside the president’s control and that is not even a republican form of government but that is the logic of the position that’s being advanced here. That is the parade of horribles the court ought to consider.”

Follow @KelseyReichmann Follow @kelseyreichmann.bsky.social