constitutional power

WASHINGTON — The Supreme Court said Monday it will decide on reversing a 90-year precedent that has protected independent agencies from direct control by the president.

The court’s conservative majority has already upheld President Trump’s firing of Democratic appointees at the National Labor Relations Board and Merit Systems Protection Board. And in a separate order on Monday, it upheld Trump’s removal of a Democratic appointee at the Federal Trade Commission.

Those orders signal the court is likely to rule for the president and that he has the full authority to fire officials at independent agencies, if Congress said they had fixed terms.

The only hint of doubt has focused on the Federal Reserve Board. In May, when the court upheld the firing of an NLRB official, it said it decision does not threaten the independence of Federal Reserve.

The court described it as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” Trump did not share that view. He threatened to fire Federal Reserve Chair Jerome Powell during the summer because he had not lowered interest rates.

And he is now seeking to fire Federal Reserve Governor Lisa Cook, a Biden appointee, based on the allegation she may have committed mortgage fraud when she took out two home loans in 2021.

Trump’s lawyers sent an emergency appeal to the Supreme Court last week seeking to have Cook removed now.

Long before Trump’s presidency, Chief Justice John G. Roberts had argued that the president has the constitutional power to control federal agencies and to hire or fire all officials who exercise significant executive authority.

But that view stands in conflict with what the court has said for more than a century. Since 1887, when Congress created the Interstate Commerce Commission to regulate railroad rates, lawmakers on Capitol Hill believed they had the authority to create independent boards and commissions.

Typically, the president would be authorized appoint officials who would serve a fixed term set by law. At times, Congress also required the boards have a mix of both Republican and Democratic appointees.

The Supreme Court unanimously upheld that understanding in a 1935 case called Humphrey’s Executor. The justices said then these officials made judicial-type decisions, and they should be shielded from direct control by the president.

That decision was a defeat for President Franklin Roosevelt who tried to fire a Republican appointee on the Federal Trade Commission.

In recent years, the chief justice and his conservative colleagues have questioned the idea that Congress can shield officials from direct control by the president.

In Monday’s order, the court said it will hear arguments in December on “whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled.”

Justice Elena Kagan has repeatedly dissented in these cases and argued that Congress has the power to make the law and structure the government, not the president.

Joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, she objected on Monday that the court has continued to fire independent officials at Trump’s request.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” she wrote. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

“I am not a crook,” President Nixon said in 1973.

“I’m not a dictator,” President Trump insisted on Monday.

And with that, another famously false presidential proclamation entered the annals of memorable statements no president should ever feel compelled to make.

It took months more for Nixon’s crimes to force him to resign in 1974 ahead of his all-but-certain removal by Congress. But a half-century later, Trump is unabashedly showing every day that he really does aspire to be a dictator. Unlike Nixon, he doesn’t have to fear a supposedly coequal Congress: It’s run by slavish fellow Republicans who’ve forfeited their constitutional powers over spending, tariffs, appointments and more. Lower courts have checked Trump’s lawlessness, but a too-deferential Supreme Court gets the last word and empowers him more than not.

Americans are indeed in proverbial uncharted waters. Four months ago, conservative columnist David Brooks of the New York Times wrote — uncharacteristically for a self-described “mild” guy — “It’s time for a comprehensive national civic uprising.” It’s now past time.

Perhaps more troubling than Trump’s “not a dictator” comment was a related one that he made on Monday and reiterated on Tuesday during a three-hour televised Cabinet praise meeting (don’t these folks have jobs?). “A lot of people are saying maybe we like a dictator,” he said. Alas, for once Trump isn’t wrong. MAGA Republicans are loyal to the man, not the party, and give Trump the sort of support no president in memory has enjoyed.

A poll from the independent Public Religion Research Institute earlier this year showed that a majority of Americans — 52% — agreed that Trump is a “dangerous dictator whose power should be limited before he destroys American democracy.” Those who disagreed were overwhelmingly Republicans, 81% of whom said Trump “should be given the power he needs.” Americans’ split on this fundamental question shows the extent to which Trump has cleaved a country founded and long-flourishing on checks and balances and the rule of law, not men.

That Trump would explicitly address the dictator issue this week reflects just how head-spinningly fast his dictatorial actions have been coming at us.

The militarization of the nation’s capital continues, reinforced with National Guard units from six red states, on trumped-up claims of a crime emergency. Trump served notice in recent days that the thousands of troops and federal agents will remain on Washington’s streets indefinitely despite a federal law setting a 30-day limit — “We’re not playing games,” he told troops on Friday — and that Chicago, Baltimore, New York and perhaps San Francisco are next.

In all cases, as with Los Angeles, Il Duce is acting over the objections of elected officials. But who cares about stinking elections? Trump warned on Friday from his gilded Oval Office that Washington’s thrice-elected Mayor Muriel Bowser “better get her act straight or she won’t be mayor very long, because we’ll take it over with the federal government.” And after Illinois Gov. JB Pritzker, another Democrat, slammed Trump for his threats, El Presidente replied that he has “the right to do anything I want to do.”

This is scary stuff, and it’s being normalized by the sheer firehose nature of Trump’s outrages and by the capitulation of his Cabinet, Congress, corporations and rightwing media. That’s why the remaining citizenry must take a stand, literally.

Trump’s sycophants atop the Pentagon and intelligence agencies, the equally unfit Pete Hegseth and Tulsi Gabbard, continued their purge of senior military officials and intelligence experts whose loyalties to Trump are suspect. And on Friday, the FBI raided the home of former Trump advisor John Bolton, in a chilling signal to other critics.

In a first for a president, Trump on Tuesday tried to fire a member of the independent Federal Reserve board, Biden appointee Lisa D. Cook, in apparent violation of federal law aiming to protect the Fed against just such political interference. The Fed’s independence has been central to the United States’ role as the globe’s preeminent economic power; investors worldwide believe the central bank won’t act on a president’s whims. But Trump is determined to cement a majority that will deeply cut interest rates, inflation be damned. Cook is suing to keep her job, setting up a Fed-backed showdown likely headed to the Supreme Court. Despite its partiality to a president’s power over independent federal agencies, the court has repeatedly suggested that the Fed is an exception. Let’s hope.

Trump, who regularly assails Democrats as socialists and communists, now boasts of compelling private corporations to give the government a stake. Speaking on Monday about a new deal in which the beleaguered head of chipmaker Intel agreed to give the government a 10% stake, Trump declared, “I hope I have many more cases like it.” And yet we get more crickets from Republicans who profess to be the party of free enterprise and free markets.

The president’s campaign against federal judges who oppose him continues as well. On Tuesday it was one of his own appointees, U.S. District Judge Thomas Cullen, who tossed Trump’s lawsuit against the entire federal judiciary in Maryland. To accept the president’s suit, Cullen wrote, would violate precedent, constitutional tradition and the rule of law.

Alas, such violations pretty much sum up Trump’s record so far.

He’s trying to rewrite history at the Smithsonian Institution, including whitewashing slavery, and dictating to law firms, universities and state legislatures. On Tuesday, Trump had Republican state legislators from Indiana to the White House to press them to join those in Texas and other red states who are, on his orders, redrawing House districts expressly so Democrats don’t win control of Congress in next year’s midterm elections.

Amid all this, the New Yorker was out with an exhaustive review of Trump’s finances that conservatively concluded that he’s already profited on the presidency by $3.4 billion. If he’s not careful, Trump won’t only be denying he’s a dictator; he’ll be echoing Nixon on the crook rap.

Bluesky: @jackiecalmes
Threads: @jkcalmes
X: @jackiekcalmes