On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
The blessings of liberty in this country and other functioning democracies depend in important ways on something that legal scholars call the “internal separation of powers.” Prosecutors in robust democracies, for example, enjoy some separation from the head of state, as they are expected to apply the law neutrally. In early America, prosecution was lodged outside of presidential control, among private citizens, state officials, and distant United States Attorneys. Electoral commissions and media regulators, here and abroad, often consist of representatives of both parties in order to ensure fair elections and even-handed government treatment of ideologically diverse broadcast media.
Elected authoritarians in Turkey and Hungary defeated the internal separation of powers undergirding their democracies and gave themselves control over entities vital to a well-functioning democracy by obtaining the power to remove officials devoted to the rule of law from these entities. Once they secured direct or indirect head-of-state control over government officials, they used that power to undermine the rule of law and democracy. For example, Hungary’s prosecution service, once under Prime Minister Orbán’s control, took to announcing prosecution of political opponents on the eve of elections, only to drop charges afterward to avoid the embarrassment of a judicial check. Turkish President Erdogan’s prosecutors singled out political opponents for prosecution for violations of the tax code. More recently, they have charged political opponents with terrorism-related crimes. At the same time, rampant corruption in authoritarian states escapes prosecution. These countries’ captured electoral commissions bend the rules to favor the ruling party, and their media authorities work to convert major media into government propaganda organs.
The Trump administration has asked the Supreme Court to invalidate a statutory provision written to ensure the independence of the director of the Consumer Financial Protection Bureau’s (CFPB) by making clear he or she may only be fired for cause. This provision enables the president to fire the director for failing to faithfully execute the law. But the president under this statute cannot fire the director for prosecuting companies whose CEOs support the president or for declining to investigate innocent companies headed by an opponent of the president. The Trump administration argues that the Constitution gives the president sole control over the executive branch of government and therefore allows him to fire government officials for no valid reason whatsoever.
While this one provision may seem insignificant, the principle at stake is enormously important. Although some of the Framers sought to give the president sole dominion over the executive branch of government by allowing him to appoint its officials “at pleasure,” meaning subject to firing at will, they ultimately rejected this. Instead, the Constitution only expressly authorizes the Senate to remove government officials (after impeachment in the House). The Constitution also expressly authorizes Congress to write general rules governing the executive branch of government, like the rules governing terms of office and the grounds for removal. Alexander Hamilton explained in the Federalist Papers that the Constitution aimed to prevent appointment of “obsequious instruments” of presidential pleasure and that the need to get Senate approval for removal of officers would provide for stable administration of the law.
While the Supreme Court abolished Senate control over removal outside the impeachment context in 1926, it has never held that the Congress has to leave the president free to fire all high government officials for political reasons. But that is the principle the Trump administration is fighting for in the CFPB case. The Court should show a bit of judicial modesty and not adopt a new constitutional rule that would prevent Congress from protecting the rule of law upon which our democracy depends.
Top photo by Ted Eytan, used under a Creative Commons license.
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David Driesen | February 27, 2020
On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
Noah Sachs | February 26, 2020
Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest.
Joel A. Mintz | February 24, 2020
In recent months the Trump administration has intensified its assault on federal environmental safeguards on several fronts. It has proposed drastic reductions in the scope of protections against water and air pollution, lagged in the cleanup of hazardous waste contamination, allowed the continued marketing of toxic herbicides, narrowed the scope of needed environmental impact reviews, ignored and undermined legitimate scientific studies and findings, and dismantled government attempts to mitigate and adapt to the climate crisis.
Noah Sachs | February 19, 2020
On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline's construction and protect the Appalachian Trail.
Daniel Farber | February 18, 2020
The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current global warming may impact society.
Matthew Freeman | February 12, 2020
When I was a 7th grader living in a Maryland suburb of Washington, D.C., my school system was one of many around the nation to launch a program of school busing to desegregate its schools. After 18 years, the 1954 decision in Brown v. Board of Education finally traveled a handful of miles down the road from the Supreme Court and arrived in Prince George’s County, Maryland. I was reminded of that as I listened to the latest episode of Connect the Dots, CPR’s podcast hosted by Rob Verchick, on the Juliana v. United States case
Katie Tracy | February 5, 2020
Last week, more than 100 advocates, academics, and reporters joined the Center for Progressive Reform (CPR) for a webinar with three leading experts on climate migration and resilience. Presenters discussed the biggest challenges that communities and workers are facing due to the climate crisis.
James Goodwin | February 4, 2020
On Thursday, the House Oversight and Reform Committee's Environment Subcommittee will hold a hearing to examine the harm to children posed by the Trump administration's attack on one of the most wildly successful clean air protections in American history: the Obama-era Mercury and Air Toxic Standards (MATS). The rule, adopted in 2012 after literally decades in the making, has reduced coal-fired power plant emissions of brain-damaging mercury by more than 81 percent, acid gases by more than 88 percent, and sulfur dioxide by more than 44 percent. Altogether, its pollution reductions have saved thousands of lives.
Karen Sokol | January 28, 2020
On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit."