Our Court, the Ostrich

The Supreme Court's long expected decision in Trump v. Slaughter is ostrich-like in the majority Justices' notable refusal to examine how its decision might empower a president with distinctly autocratic tendencies. (The ostrich comparison is not originally mine; Justice Jackson called the majority in Students for Fair Admissions v. Harvard "ostrich-like" in its "hope that preventing consideration of race will end racism.") 

As most commentators expected, the Court in Slaughter overruled Humphrey's Executor v. United States and held unconstitutional for-cause removal protection for FTC Commissioners (and, by extension, most other independent agencies' leadership). Chief Justice Roberts' opinion relies heavily on founding-era materials to conclude that the framers created a "unitary and accountable executive." I happen to believe that the Court places too much weight on founding-era history and also that its reading of that history is, at best, overly simplistic. The Court's reading of the relevant legal precedent is also misleading. The Chief Justice depicts Humphrey's Executor as a narrow anomaly, but it was arguably the most important decision in the area of presidential removal power until about 2010 when the Roberts Court started systematically chipping away at it starting in cases beginning with Free Enterprise Fund v. Public Company Accounting Board.   

Much more could obviously be said about these (and other) critiques (including Mike's thoughtful analysis here), but I want to focus on something else. What might be most extraordinary about the Slaughter decision is that the majority opinion says not a word about its real-world consequences. Specifically, the Chief Justice's decision does not grapple with how the case fits into President Trump's efforts to take control of the entire federal bureaucracy. Nor does the Court acknowledge that the president's claimed power over that bureaucracy is probably best understand as part of a larger effort to use the power of the White House to erode democratic guardrails. Even if the Court has the history and precedent right--and I don't think it does--it is notable that the Court would extend to the President nearly unlimited control over previously independent agencies without saying a word about what that decision might do to our democratic order at this particular moment. The Court, in effect, treats the case as an abstract legal problem divorced from the real world at an especially perilous moment when courts more than ever should be cognizant of their decisions' implications for democracy. 

This is not to argue that consequential reasoning alone should govern constitutional decision making. Text, structure, precedent, history, and other modalities should (as always) play some role. But if we care about the founders' vision, as the Court professes, then surely it must also be relevant that the framers sought to create a pragmatic government that prevented too much power from amassing within any one branch. As Cass Sunstein has recently put it, "The U.S. Constitution, an emphatically liberal document, is meant to prevent tyranny." 

Today's Court says very little about tyranny. To the extent it expresses concern about governmental power, its chief villain is Congress. Partisan gridlock, however, has rendered Congress increasingly impotent in recent decades. This isn't to say Congress can't tyrannize, but rather that it has been far too dysfunctional in recent memory to do so--or to do too much of anything (with, of course, some notable exceptions). 

The threat of governmental tyranny nowadays is far more likely to emanate from the executive branch--especially this executive branch. The Court did not mention this at all, even though that threat of tyranny is directly relevant to this case. As Kim Lane Scheppele has documented, aspiring autocrats try to take control of the national bureaucracy so that civil servants answer only to the leader of state rather than the law. Viewed through this lens, the firing of Rebecca Slaughter was part of a larger project to bring the nation's administrative state entirely under President Trump's control. Other examples include stripping tens of thousands of federal workers of their civil service protections, authorizing the so-called Department of Governmental Efficiency to prepare "large-scale reductions in force," gutting Congressionally created agencies like the Department of Education, firing governmental inspectors general, and wielding the Department of Justice's prosecutorial power to attack the President's political enemies. The list, unfortunately, could go on and on.

To be sure, these other exercises of presidential power might not seem immediately relevant to the issue in Slaughter about whether Congress can limit the president's power to remove leadership from administrative agencies. In another sense, though, President Trump's use of executive authority is highly relevant because it suggests that he is, in fact, wielding the autocrats' playbook, and the unitary executive theory is an important tool in that playbook. Notwithstanding the Chief Justice's competent but one-sided account of the history, it is far from clear that the founding generation arrived at a definitive view on the president's removal power. (Indeed, after the framing and ratifying processes were complete, the First Congress continued to wrestle extensively with these issues of executive removal.) By contrast, it is clear that the founding generation opposed tyranny, and yet the majority opinion says nary a word about how Slaughter's firing may fit into a broad autocratic pattern. Nor does the Court entertain the possibility that a future administration, perhaps a Democratic one, could use this same authority to tighten its hold on power.

The Court's ostrich tendencies in recent decisions are not confined to Slaughter. In Mullin v. Doe, the Court refused to acknowledge the administration's racist language connected with its removal of Temporary Protected Status of Haitian immigrants. As Justice Kagan noted in dissent, the evidence included "statements by the President so repellent and racially inflected that the majority declines to put them in print." President Trump had said the Haitians are "eating the dogs.... They're eating the cats;" they "probably have AIDS;" and they hail from a "shithole country." The President also wondered why the U.S. could not instead "have some people from Norway [and] Sweden." Even though these statements seem racially coded, the majority refused to grapple with any of this evidence, brushing it off as "not overtly racial." How are we to trust the majority's conclusion that the president's statements were not "overtly racial" when the majority doesn't even identify, let alone engage with, the relevant evidence?

It is not like the Court is incapable of grappling with real-world facts. In Trump v. Cook, the Court (by a bare 5-4 majority) recognized that to accept the president's theory of removal "would in effect transform the Federal Reserve's for-cause protection into at-will employment." The Court, in other words, acknowledged that, practically speaking, if it permitted the President's for-cause removal in this case, it would effectively be eviscerating for-cause protections altogether. Moreover, the Court in Cook acknowledged the practical importance of the Federal Reserve's independence, explaining "[w]e see no reason to. . . sow doubt as to the status of one of our Nation's (and the world's) most important financial institutions." The Fed's financial importance, of course, does not satisfactorily distinguish the Federal Reserve Bank, whose Board of Governors still enjoy for-cause removal protections after Cook, from other independent agencies, whose leadership does not enjoy such protections after Slaughter. Nevertheless, the Court's discussions here show that it is not always willfully naive to real-world facts.

But it often is, and that's a real problem--especially now. There is ample evidence that the current administration is following the autocratic legal playbook to, in Scott Cummings' words, "destroy democracy through law." President Trump's firing of FTC Commissioners is one move in that much larger effort, but you wouldn't know a thing about it from reading the majority decision in Trump v. Slaughter. The Court's motto could be "See no evil, hear no evil, speak no evil."  

At some level, I can appreciate the Court's reluctance to engage with this administration's various moves that are not immediately pertinent to the case before it. A discussion of other political antics might seem gratuitous. Some Justices also may want to avoid provoking the president so as to save their political capital for another day. (Some other Justices may be just fine with much of what the current administration is doing.) And the Court may want to issue a decision "for the ages" not too tethered to any particular moment in history.

Ultimately, though, it is highly concerning that the Court refuses to grapple with the dangers to democracy posed by this president--or by any president with autocratic instincts. Separation of powers is our Constitution's primary mechanism to guard against such any single branch's aggregation of too much power, and the Court insisted that its decision in Slaughter was all about separation of powers. However, the Court, ostrich-like, didn't seem to notice those threats at all. 

-- Eric Berger