The Supreme Court Takes One More Big Step Toward Autocracy

On Monday, the Supreme Court banished any doubt that it has claimed absolute authority to reshape the federal government as it sees fit. Its decisions in and are almost comically irreconcilable as a matter of logic: The court at once allowed the president to fire the heads of almost every independent agency while preventing him from removing a leader of the one agency it really values, the Federal Reserve. These rulings make sense only as one step in the court’s broader campaign of empowering the president—specifically this president, Donald J. Trump—to enact most of his agenda through executive action without becoming complicit in a catastrophic recession. But the biggest winner here isn’t even Trump; it’s SCOTUS itself. The court not only gets to establish sweeping new rules of American governance, but also to tweak those rules as necessary to favor presidential policies it prefers while quashing those it dislikes. Who could possibly call this a democracy?

Chief Justice John Roberts, who authored the opinions in Slaughter and Cook, handed them down as a paired set, as though one counterbalanced the other. But Slaughter is by far the more significant decision. By a 6–3 vote, the conservative supermajority overturned Humphrey’s Executor, a unanimous, 91-year-old precedent that limited the White House’s ability to interfere with independent agencies. Humphrey’s held Congress could prevent the president from firing the heads of these agencies without good cause, affirming a tradition that reached back to the early days of the republic. Since then, Congress has created dozens of agencies whose leaders could not be terminated at the White House’s whim. In Slaughter, Roberts declared that those removal protections are unconstitutional, because officials who exercise “executive power” serve “as the president’s subordinate” and therefore “must be removable at will.” And he approved Trump’s termination of Rebecca Slaughter, a Democrat, from the Federal Trade Commission.

The impact of this decision is gobsmacking. It strips independence from a vast range of federal agencies, including those that regulate nuclear energy, consumer safety, unions, hazardous chemicals, mine safety, crypto, and large swaths of the economy. Trump can now seize unquestioned control over the bodies that exercise these vast regulatory powers. He can order them to give up their traditional missions—bipartisan execution of laws passed by Congress—and start pursuing his own priorities instead.

SCOTUS previewed this outcome last year when it preliminarily allowed Trump to fire Slaughter and other agency heads, telegraphing Monday’s decision. So we’ve already gotten a taste of the consequences. For instance, while the Trump-controlled FTC relaxes scrutiny of mergers (especially for companies allied with the president), it has launched a full-on assault against gender-affirming care for minors, a field far outside its mission. And when the previous postmaster general declined to do Trump’s bidding, the president pushed him out and replaced him with a crony who has agreed to withhold mail ballots in blue states. Congress intended for the Postal Service to run independently from partisan politics. The Supreme Court evidently sees that arrangement as an assault on the separation of powers.

And yet there is one single agency whose independence SCOTUS continues to safeguard: the Fed. In tandem with Slaughter, the chief justice announced Cook, which prevents Trump from removing Lisa Cook from the Fed’s board of governors. The decision was 5–4, with Roberts and Justice Brett Kavanaugh joining the liberals.

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On what basis could Roberts and Kavanaugh possibly allow Trump to purge Democratic appointees from the rest of the administrative state while zealously protecting members of the Fed? Roberts barely bothered to explain. After recounting the various permutations of a central bank throughout American history, he concluded that the Fed’s independence constitutes a “special arrangement sanctioned by history.” What does that mean? Kavanaugh, in a concurrence, added his own gloss, reiterating the court’s previous that the Fed is a “quasi-private, uniquely structured entity” with a “distinct historical tradition.” But its board of governors is not actually quasi-private or unique, except in the sense that all federal agencies have some unique origin story. So, again: What is the constitutionaldistinction that allowed the court to spare the Fed from its otherwise categorical execution of agency independence?

To his credit, Kavanaugh comes admirably close to giving us the answer: The Fed is just too important to leave in the hands of the president. In his concurrence, he warned that letting Trump fire Cook would “jeopardize the efficacy of U. S. monetary policy,” “spark political upheaval,” cause “turmoil in the U. S. and world economies,” and “risk destabilizing the U. S. economy.” (Kavanaugh didn’t say so explicitly, but the real threat was that Trump would force a hand-picked Fed to prematurely lower interest rates, risking an inflation spiral.) The justice refused to “go down that road,” instead settling the issue now. So he joined the court in holding that the Fed’s board of governors may only be removed “for cause,” and Trump did not give Cook sufficient opportunity to rebut his (bogus) claim that she committed mortgage fraud.

Is this a rational way to structure the U.S. government? Reasonable people may disagree. But is this how the Constitution structures the U.S. government? Come on. In reality, no provision of the Constitution addresses the president’s removal power, and the Framers themselves vigorously disagreed on the subject. By contrast, the Constitution explicitly authorizes Congress to establish federal agencies and define the scope of their mandate. Roberts ignored this enumerated power in favor of a secret, unwritten right of the president to remove agency heads. He then established a secret, unwritten exception to this power for an institution whose independence he favors for practical, even self-interested reasons. (Even the justices have retirement accounts.)

Trump is obviously Monday’s biggest winner: With one exception, he now gets to assert dictatorial control over the executive branch in direct defiance of Congress’ design. Slaughter’s defenders will point out that future Democratic presidents will also benefit from the ruling. But it creates a structural bias toward the GOP: Roberts’ decision facilitates Republicans’ demolition of the administrative state, letting them hollow out and paralyze agencies while offering little help to Democratic presidents who want to use those same agencies constructively.

It is tempting to say that the biggest loser is Congress, which just saw its express authority to structure the executive branch nuked from orbit. And certainly, the legislative branch just suffered a massive blow. But in truth, the real casualties are all Americans who would prefer to live in a liberal democracy rather than the illiberal autocracy this Supreme Court is crafting. As Justice Sonia Sotomayor wrote in dissent, the supermajority has discarded a “democratic regime in favor of one that distorts the structure of government to fit the majority’s theory of unitary, total executive control.” That distortion will seriously strain the architecture that upholds our constitutional system. How many more hits can it take before it all comes crashing down?

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