The U.S. Supreme Court “has undermined lower courts” and “effectively allowed the president to neutralize some of the last remaining sites of independent expertise and authority inside the executive branch,” University of Pennsylvania law professor Kate Shaw warns. And doing so could have a catastrophic impact of the rule of law in the country.
Shaw, writing for the New York Times, discussed a recent decision by the Supreme Court to “stay” rulings from the U.S. District Courts and the full D.C. Circuit. That ruling permitted President Donald Trump to fire high-level officials — a move previously considered “unlawful under existing precedent.”
Shaw in her essay argues against the “unitary executive theory” and its proponents’ “singular fixation on the president’s power to fire — a power the Constitution doesn’t expressly give the president.”
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“Even if you disagree — even if you think that Article II’s grant of ‘the executive power’ to the president includes the power to fire at will any high-level official in the executive branch — the court’s disposition of the case sends a profoundly dangerous message to the White House,” Shaw warns. “…Handing the president a win here suggests that the administration did not need to abide by Congress’s statutes or the Supreme Court’s rulings as it sought to change legal understandings.”
“This decision risks emboldening the administration further to act outside of our traditional constitutional order,” she adds.
Shaw writes:
In the past four months, the lower courts have done more than other government entities to respond to the chaos emanating from the Trump administration. They have enforced constitutional guarantees, required compliance with statutes and insisted on the force of the decisions of the Supreme Court.
The Supreme Court, by contrast, has undermined lower courts seeking to protect the rule of law and emboldened an administration eager to trample it. You can see why White House lawyers could feel encouraged to advise Mr. Trump of the correctness of a claim he was once mocked for making: “I have an Article II, where I have the right to do whatever I want as president.”
Shaw called the decision “radical,” arguing “it effectively overruled an important and nearly century-old precedent central to the structure of the federal government without full briefing or argument.”
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“Many of it decisions involving the presidency — including last year’s on presidential immunity — have enabled the president to declare himself above the law," Shaw warned. "The court’s latest order both enables the consolidation of additional power in the presidency and risks assimilating a ‘move fast and break things’ ethos into constitutional law."
For Shaw, the Supreme Court’s decision to hamstring lower courts could signal it believes “it retains the ultimate authority to check presidential lawlessness.”
“The danger is that by the time the court actually tries to exercise that authority, it may be too late,” she adds.
Read the full essay at the New York Times.
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