Favoring a President Over Precedent

Under this Supreme Court, executive excess seems A-OK

That was quick.

On Tuesday, in responding to a Supreme Court order blocking an ill-considered presidential attempt to deport Venezuelans, federal Judge James Ho said, “It is not the role of the judiciary to check the excesses of the other branches.”

On Wednesday, in referring to Chief Justice John Roberts’ recent statement that his court’s job is to check the excesses of Congress and the executive, Vice President JD Vance said, “I thought that was a profoundly wrong sentiment.”

On Thursday, in deciding whether the president could, for now, fire agency heads in clear violation of federal statutes and court precedent – pretty much the definition of lawless excess – the Supreme Court ruled, sure, go ahead, the agencies are in your branch of government.

Chalk one up for the judge and JD.

OK, it’s tempting to think that the court folded in direct response to last week’s withering criticism from these two towering statesmen. It didn’t. But the public sniping between Roberts and Vance and even Ho has been going on for months – and between conservative justices and heirs to the Supreme Court’s assertive past for years. Now that those conservatives are ascendant, now that a you-can’t-make-me White House is in power, it seems reasonable to fear that extreme deference to the president is becoming business as usual at the U.S. Supreme Court.

To his credit, John Roberts seems to worry about this. He has stood up clearly if mildly for the independence of the courts, saying back in 2018 that we don’t have Clinton or Bush or Obama or Trump judges but “dedicated judges.” Last December, in his year-end report, he wrote that judicial independence “is undermined unless the other branches [of government] are firm in their responsibility to enforce the court’s decrees.” He didn’t name Vance, but surely on his mind were the incoming vice president’s repeatedassertions that Trump need not comply with “illegitimate” rulings – as defined by the president.

In March, hours after Trump and others called for impeaching the federal judge who tried to stop planes from flying migrants to El Salvador, the chief justice doubled down. ““For more than two centuries,” he said, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” Then, at a gathering of judges and lawyers on May 7, Roberts again warned of impeachment threats and, answering a question about judicial independence, made his comment about the court’s role in checking the excesses of Congress or the executive.

Meanwhile, Judge Ho was basking in the controversy over his opinion the day before contradicting the chief justices’ view. Ho’s an interesting character. As the most outspoken, far-right judge on the U.S. Court of Appeals in New Orleans, he has a long history of dyspepsia over the views of other judges. His comments in a concurring opinion last week about checking “excesses” could be dismissed as more complaining from a crank, but Ho’s name pops up often as a potential Trump nominee to the Supreme Court, so his complaints carry weight.

Which brings us to the top court’s decision on Thursday. Earlier this year, Trump fired Biden-appointed commissioners of two independent agencies – the National Labor Relations Board and the Merit Systems Protection Board – despite federal laws barring their removal without good reason, and a 90-year-old Supreme Court decision upholding those laws. Lower courts blocked the firings, but the justices granted the administration’s request to allow them. The court’s logic: The president controls the executive, the commissioners help exercise executive power, so he can willy-nilly toss them and the officers of any other agency. Oh, except for Federal Reserve Board members. The Fed is different.

A couple of things. First, this is an example of the unitary executive theory at work, the conservative chestnut that says the president’s constitutional power over that branch is absolute. It’s a neat theory, except when it doesn’t work. Like when it affects the Fed. There’s no obvious legal reason for treating the Federal Reserve differently, and the court didn’t really offer one. The practical reason, of course, is that if you give the president power over the Fed and the setting of interest rates and all, the capital markets and the economy go bonkers. So you make an exception which, rather than a solution, is a pretty clear admission that your theory is, you know, wrong.

Second, there are those pesky laws. One, the 90-year-old precedent, Humphrey’s Executor, says the Constitution allows Congress to create independent, bi-partisan agencies of people qualified to make smart decisions in certain areas without fearing for their jobs. The court overrode that precedent, not after full and careful deliberation, but on the so-called emergency docket: an abbreviated method of granting relief on a pressing issue. Setting aside whether these firings qualified as an emergency, as Justice Elena Kagan wrote in dissent, “nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.”

“Today’s order,” concluded Kagan, “favors the president over our precedent.”

It doesn’t take much imagination to see one way this might play out. Roberts’ warnings are already going unheeded, even by himself. (This, by the way, should probably not surprise anyone still aghast at the chief justice’s opinion last year granting the president near-blanket immunity from prosecution.) In their noble struggles against the administration’s stunning excesses, Harvard University and big law firms and detained PhD student Rümeysa Öztürk and gay and transgender soldiers and Canadian exporters and all the other targets of political cruelty may ultimately not stand a chance. If Thursday’s ruling is any indication, this Supreme Court does not check presidential excess. It cowers before it.