Federal laws requiring presidents to show cause are, on the other hand, commonplace. More than 30 statutes say that leaders of executive agencies can be removed only for some combination of the same factors cited in the #law shielding #FTC commissioners like Ms. Slaughter. Another 20 or so, like the one governing the #FederalReserve Board, say only that agency leaders may be removed “for cause,” without elaboration.

#HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy

Arguments have started 🧵

Trump’s Solicitor General D. John Sauer opened his argument by calling the court’s landmark decision in the 1935 case #HumphreysExecutor “an indefensible outlier.” He called the case “a decaying husk with bold & particularly dangerous pretensions” that was “grievously wrong” when it was decided.

Again. This was a landmark decision that has stood for 90 years.

#law #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #power

Justice Sonia #Sotomayor says #SCOTUS should be wary of overturning a 90-year-old precedent that established the very structure of the modern #FederalGovernment.

Sotomayor appears sharply skeptical of the #Trump admin’s argument that the president has the #power to fire the leaders of #independent agencies. “You’re asking us to overturn a case that has been around for over 100, nearly 100 years. Correct?”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy #ExecutiveBranch 🧵

#Sotomayor added, “You’re asking us to destroy the structure of government” & “to take away from #Congress its ability” to decide the “government is better structured with some agencies that are #independent.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #power 🧵

Sauer is quick to try to carve out the #FederalReserve, saying the admin has not challenged congressional limitations on the president’s #power to remove its members.

But that has started a long back & forth between several Justices & Sauer about which agencies would not be subject to a decision in favor of #Trump.

There are hundreds of “#independent” federal agencies.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #SeparationOfPowers #Congress 🧵

The conservative legal movement has long argued an originalist understanding of the #Constitution — an interpretation that looks to how the document was understood at the time of the nation’s founding—demands letting the president remove #ExecutiveBranch officials as he sees fit. The so-called “unitary executive theory,” says the president should have complete control of the exec branch & congressional efforts to shield leaders of #independent agencies from #politics should be forbidden.

#law 🧵

In Sept, though, a leading originalist law professor, Caleb E. Nelson, challenged that wisdom in an article that attracted attention in legal circles & beyond. He wrote that the text of the #Constitution & the historical evidence surrounding it in fact grant #Congress broad authority to shape the #ExecutiveBranch, including by putting limits on the president’s #power to fire people.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #SeparationOfPowers 🧵
https://democracyproject.org/posts/must-administrative-officers-serve-at-the-presidents-pleasure

Professor Nelson, who teaches at the University of Virginia and served as a law clerk to Justice #ClarenceThomas, has been exceptionally influential. His scholarship has been cited in more than a dozen #SCOTUS opinions & by every member of the 6-justice conservative majority.

#law #HumphreysExecutor #ActivistCourt #Trump #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Nelson’s September article was repeatedly cited by lawyers for Rebecca Kelly Slaughter, the member of the #FTC whose firing is at issue in Monday’s case, in her main #SCOTUS brief. In reply, lawyers for #Trump wrote that Ms. Slaughter’s brief “rehashes objections to the removal power” from a “recent essay by Professor Caleb Nelson.”

#law #HumphreysExecutor #ActivistCourt #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Professor Nelson’s article acknowledged that #SCOTUS “appears to be moving toward a sweepingly pro-president position.”

Letting the president fire ofcls “for reasons good or bad,” Nelson wrote, would grant him “an enormous amount of #power —more power, I think, than any sensible person should want anyone to have, & more power than any member of the founding generation could have anticipated.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #ExecutiveBranch #SeparationOfPowers #Congress 🧵

But the question is not whether allowing limits on the president’s power to fire officials is sensible, Professor Nelson wrote.

“I am an originalist, & if the original meaning of the #Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes,” he wrote.

But the textual & historical evidence is “far more equivocal than the current court has been suggesting,” he wrote.

#law #SCOTUS 🧵

Back to the courtroom [done w/discussion of Nelson’s article]

Justice Elena Kagan says independent agencies do a lot of legislating & a lot of judging [I would say “regulating & investigating”, not “legislating & judging”, but that’s me]. Giving the president unfettered authority over them, she says, would concentrate “massive unchecked power” in the #ExecutiveBranch, at odds with the #SeparationOfPowers.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #Congress 🧵

Sauer immediately jumps on Kagan’s characterization that agencies legislate & judge as further reason why agencies need to be reeled in bc if they’re doing those things then they’re violating the Constitution’s #SeparationOfPowers. Legislation being a #power of #Congress & judging a power of the #judiciary.

This is exactly why I disagreed with her phrasing. Regulating & investigating is more accurate anyway.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch 🧵

Justice #Kavanaugh expresses doubts about one part of the #Trump admin’s argument: even if the fired commissioner wins, she is not entitled to reinstatement but only to back pay. If that argument were accepted, Kavanaugh says, it could affect the #FederalReserve.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Justice Ketanji Brown #Jackson expressed doubt that more presidential firing power is better for democracy.

"You seem to think that there's something about the president that requires him to control everything as a matter of democratic accountability, when, on the other side, we have #Congress saying we'd like these particular agencies & officers to be #independent of presidential #control for the good of the people," Jackson told Sauer.

#law #SCOTUS #ActivistCourt #Trump #SeparationOfPowers 🧵