'Dismantling every guardrail': Expert warns Supreme Court poised to lift Trump constraint
The Supreme Court may be poised to overturn a massive precedent that has limited Donald Trump's power to unilaterally control and weaponize enforcement of the law, wrote legal analyst Mark Joseph Stern for Slate — and it starts with them issuing an unexplained emergency order that lets Trump completely ignore settled law.
This follows a long series of similar "shadow docket" decisions in which lower courts have temporarily blocked Trump from carrying out moves that are illegal under established case law, only for the Supreme Court to reverse the lower courts without any explanation while the case proceeds — an issue federal judges themselves, from both parties, are starting to protest.
"Monday’s decision in Trump v. Slaughter marks the Supreme Court’s clearest signal yet that it plans to restructure the federal government by transferring even more power from Congress to the White House," wrote Stern. "The case began when Trump fired Rebecca Slaughter from the Federal Trade Commission in March — a blatantly illegal act. Congress prohibited the president from removing FTC commissioners like Slaughter without 'good cause,' and no such cause existed here. Rather, Trump terminated Slaughter because she was a Democrat, and he wanted absolute control over the agency."
With no Democrats at the FTC, it is unconstrained from pursuing partisan enforcement actions, like their investigation into Media Matters for reporting on Elon Musk's promotion of Nazi content through his X platform — although a federal judge recently blocked this probe, Stern wrote.
FTC commissioners, as with many other agencies that could potentially be weaponized for partisan purposes, cannot be fired by the president except for cause, under the law passed by Congress — which the Supreme Court affirmed in 1935's Humphrey's Executor v. United States, as constitutional. But the Supreme Court has also teed up a case to consider whether to overturn that precedent, which would give Trump free reign to fire members of independent agencies. GOP legal scholars argue the president has inherent power to fire people under his control, even though, Stern notes, that's nowhere in the Constitution.
"[Elena] Kagan, joined by the other two liberals in dissent, sounded resigned to the inevitability of Humphrey’s demise. But she still objected to her colleagues’ slipshod way of killing it prematurely over the shadow docket," Stern wrote. "That docket, she wrote, 'should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation’s separation of powers.'"
The current Supreme Court did already rule that members of the Federal Reserve, at least, cannot be fired without cause, Stern noted.
"In its Monday order, though, the court also announced that it would decide whether courts even have the power to 'prevent a person’s removal from public office' in the first place. Should the supermajority strip courts of this authority, then the Fed’s independence will vanish completely: Even if Trump fires its members illegally, the judiciary will have no ability to put them back in office."
"It is increasingly difficult to avoid the conclusion that the Supreme Court is dismantling every guardrail that separates democracy from dictatorship," Stern concluded.