Editors at National Review Online assess two significant US Supreme Court decisions involving executive power.
The Supreme Court decided two big cases Monday on the president’s power to remove executive branch officials. Chief Justice John Roberts, who wrote both decisions, only got them half-right. In Trump v. Slaughter, the Court very properly concluded that the Constitution puts the president, and only the president, in charge of the executive branch, and therefore the president must be able to fire anyone (other than the vice president, who is independently elected) who runs an agency with executive powers. In Slaughter, that meant the head of the Federal Trade Commission. The pity is that we have a Federal Trade Commission.
In Trump v. Cook, the Court surprised Court-watchers by not only doing the expected thing and blocking Donald Trump from removing Federal Reserve Governor Lisa Cook, but also going further to create a special rule just for the Fed: Congress can, but doesn’t have to, restrict the president from removing the governors.
Slaughter is good law and good policy. It restores how the executive branch was understood to work before the 1935 case Humphrey’s Executor (which the Court overruled in Slaughter) distorted it. It also finally settles in Andrew Johnson’s favor the constitutional question over which he was impeached in 1868. We don’t doubt that Donald Trump and his successors may use this power imprudently at times, but the president acquires that power through politics, and the remedy for its misuse is political. That’s democracy.
Cook is another matter. Trump tried to comply with the law restricting Cook’s removal by alleging that she had committed mortgage fraud and thus could be removed “for cause.” He didn’t argue, as in Slaughter, that he had the power to remove her at will. For once, Trump listened to shrewd legal advice from good lawyers, and the Court hung him with it. Did it even need to?
