
Will SCOTUS Rule Rightly on Executive Power?
Donald Trump’s mass firing of federal bureaucrats raises a critical constitutional question about executive authority.
Last night, deep within his 99-minute non-State of the Union speech, President Donald Trump noted that the American people had given his administration “a mandate for bold and profound change.” He then lamented the growth of a federal bureaucracy that has “crushed our freedoms, ballooned our deficits, and held back America’s potential in every possible way.”
I could see where he was going. “Meanwhile,” he continued, “we have hundreds of thousands of federal workers who have not been showing up to work. My administration will reclaim power from this unaccountable bureaucracy, and we will restore true democracy to America again. Any federal bureaucrat who resists this change will be removed from office immediately.”
Boom. Setting aside the somewhat grating Trumpian flourish about restoring “true democracy,” which would, in fact, be mob rule, the president’s warning to money-for-nothing federal employees to show up for work or be fired is a clear marker for a Supreme Court case we’re sure to see during this second Trump term. The question that’ll come before the justices is this: Is the president constitutionally empowered to exercise full control over the executive branch?
Increasingly, it seems, our 5-4-1 “conservative” Supreme Court has been warming to this argument. As constitutional scholar Ilya Shapiro writes at City Journal, “Article II of the Constitution begins with a simple declarative sentence: ‘The executive power shall be vested in a president of the United States of America.’ Those 15 words are at the heart of a key battle in the early days of the second Trump administration — and will likely be the basis for consolidating power in one individual over what has become the most important branch of government.”
Last month, an Obama-appointed U.S. district judge, Christopher Cooper, declined to block Trump’s layoff of thousands of federal employees. It was a rare legal win for the Trump administration, which has been beset by dozens of leftist lawsuits challenging one executive order after another. If you can’t beat him, sue him, the desperate Democrats are clearly saying.
In her post-speech rebuttal to Trump, newly elected Michigan Democrat Senator Elissa Slotkin decried Trump’s “mindless firing” of federal employees “only to rehire them two days later.” Said Slotkin, “No CEO in America could do that without being summarily fired.”
Of course, CEOs hire, fire, and lay off employees all the time. Perhaps Slotkin doesn’t know this, having never worked in the private sector, but CEOs are paid to make tough personnel decisions and keep their companies profitable. (In case she hadn’t noticed, we’re nearly $37 trillion in debt and haven’t been profitable in many decades. That Donald Trump seems intent on doing something about it is seen by many Democrats as an existential threat to their beloved Big Government.)
Our first “progressive” president, Woodrow Wilson, believed the elites knew better, and he sought to protect the all-powerful state against a vigorous and reform-minded executive by entrenching a bureaucracy around him. Over time, Congress became a willing accomplice to this usurpation of executive authority because its members loved the idea of offloading the blame and responsibility to an unelected bureaucracy. Hey, whoa, don’t blame us, they say. It’s that agency over there.
Recently, Trump’s solicitor general, Sarah Harris, notified the Senate as follows: “The Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and the Department will no longer defend their constitutionality.” That notification, says Shapiro, “represents the culmination of decades of work by the conservative legal movement to restore unitary executive power.” As he puts it: “Because the Constitution vests the president, alone, with executive power, it is the president, alone, who wields power over all executive agencies.”
In a telling 2020 Article II case, Seila Law v. Consumer Finance Protection Bureau, Chief Justice John Roberts took this same view, warning that if a president can’t remove executive branch employees, he “could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”
That’s certainly true. And shouldn’t we as a citizenry want to hold our presidents fully accountable for their performance in office?
At the end of his scathing solo dissent in the 1988 Morrison v. Olson case, which extended the reach of an earlier Supreme Court decision that agency heads and other executive branch bureaucrats can only be fired for incompetence or malfeasance rather than mere presidential preference, the late, great Antonin Scalia railed against the majority’s willingness to interpret the law not as it was originally intended but as they think it ought to be.
“I prefer” Scalia said, “to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that ‘the executive Power shall be vested in a President of the United States.’”
When last we checked, Donald Trump was the president of the United States.