SCOTUS gave Trump more power than a king: Sotomayor

When it came to E. Jean Carroll, mail-in ballots and the Fed, Trump lost today — but his one victory was wide-reaching.

Justice Sotomayor (Photo by Pablo Cuadra/Getty Images)

The Supreme Court handed Donald Trump substantial defeats on Monday in the cases involving E. Jean Carroll, mail-in ballots, and the Federal Reserve, but his sweeping victory in a ruling effectively abolishing other independent agencies could have sweeping repercussions.

As observed by Justice Sonia Sotomayor, the Court handed Trump a power to reshape the federal government beyond that of a king.

“The powers held by the English Crown and state governors before ratification did not include a removal power that the legislature could not modify,” Sotomayor wrote in her dissent. “Instead, Parliament often restricted the Crown’s ability to remove even high-level royal officers, and States with vesting clauses like the Constitution’s similarly allowed for limits on gubernatorial removal powers.”

In making that finding, Sotomayor cited the scholarship of Boston University law professor Jed Shugerman, who reflected on the timing of the ruling in an interview with All Rise News.

“There's so much that's going wrong in the way we're celebrating the anniversary of founding,” Shugerman said. “On the 250th anniversary, the Roberts Court is embracing royalism — and is historically going beyond royalism — to give the president more power than kings.”

Burying Humphrey’s Executor

By overturning the 90-year-old precedent of Humphrey’s Executor, the Supreme Court’s 6-3 supermajority discarded the idea of independent agencies, except for the Federal Reserve.

“What text, history, and structure settle, our precedent confirms — the President may remove his subordinates at will,” Chief Justice John Roberts wrote.

Despite being a legal earthquake, the decision wasn’t unexpected.

In December, Justice Elena Kagan predicted that the Roberts Court was “raring” to topple the 1935 precedent, issuing a shadow docket order allowing Trump to fire Federal Trade Commission chair Rebecca Slaughter. The FTC was the federal agency that Humphrey’s Executor protected in establishing the constitutionality of independent government agencies.

In discarding the concept, Justice Roberts labeled independent agencies a “headless fourth branch” of government.

Even while joining the majority opinion, Justice Neil Gorsuch appeared to recognize the massive power that he handed the U.S. president — and how it can be abused, even to clamp down on “late-night comedy.”

“Last year, taking objection to a network host’s on-air remarks, the Chairman of the FCC suggested there would be ‘additional work . . . ahead’ for the agency if broadcasting companies did not ‘find ways to . . . take action,’” Gorsuch noted in his concurring opinion, alluding to the Trump administration’s retaliation against Jimmy Kimmel.

These newfound powers expand presidential powers over the “airwaves,” “financial markets,” “energy,” and “more,” Gorsuch said.

The decision seems to retroactively bless Trump’s purges of several independent agencies last year, including the FTC, FCC, Merit Systems Protection Board, Nuclear Regulatory Commission, Consumer Product Safety Commission, and the National Transportation Safety Board.

Trump also issued executive orders expanding presidential control over the Securities and Exchange Commission and the Federal Election Commission.

Again, Gorsuch’s concurring opinion suggests that he’s aware of the dangers.

“A business out of favor with the party in control of the White House might be able to stave off an FCC investigation,” Gorsuch wrote. “But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces? Not to mention what these now-coordinated powers could do to disfavored individuals who lack the resources needed to fend off such attacks. It may be true that after today there is no more ‘fourth branch’ of government. But the fourth branch’s powers still exist; they have just been reassigned to the President.”

But Gorsuch argues that the long-tested solution for those problems — the precedents and practices that created independent agencies — were “adventurous theories” mistakenly adopted by generations of Supreme Court justices and legislatures before this court. He asserts that it’s up to Congress and the courts to right the ship.

Professor Shugerman said that the disconnect speaks to Gorsuch’s broader ideological project.

“Gorsuch's agenda — his deeper agenda, his big picture long-term agenda — is to strike down much of the administrative state to reduce executive power,” Shugerman said.

In this view, Gorsuch handing Trump these expansive powers is a necessary step toward reining in the administrative state.

‘An imperial presidency’

In her dissent, Sotomayor skewers the majority’s reading of the Constitution’s traditions, writing that there’s no evidence that the Framers wanted to hand the president “more expansive removal powers than those enjoyed by the Crown.”

“For good reason: Doing so would have been inconsistent with the Constitution’s very foundation,” the dissent states. “The Framers ‘never intended’ to give the President ‘the complete set of powers’ that the English Crown held, let alone more.”

Shugerman said his historical research found that many of the highest officers in English history were “unremovable.”

“The English didn’t really differentiate between lifetime judges, and some of the other kinds of executive officers that had lifetime appointments,” he said in an interview. “So that’s one way that the Roberts Court is giving more power to a president than kings had over their own cabinet.”

Government watchdogs are now bracing for the aftermath of the Slaughter decision:

• Court Accountability’s executive director Lisa Graves called the ruling the culmination of the chief justice’s “determination to erect an imperial presidency under the guise of the made-up ‘unitary executive theory.’”

• Lawyers for Good Government’s co-founder Gary DiBianco said the ruling hands Trump “unchecked power to purge expert, nonpartisan commissions for purely political reasons, clearing the way to dismantle the independence of institutions Americans have relied on for decades to protect their health, finances, and safety.”

Democratic lawmakers also aren’t holding back about the likely consequences of the ruling.

“The Supreme Court has become a willing partner in President Trump’s authoritarian power grab,” Sen. Chris Murphy, D-Ct., wrote in a statement. “First, they granted Trump blanket immunity from any crimes he commits in office, and now they’ve given him complete control over our federal government without any checks and balances. The results are completely predictable: Donald Trump is going to install his henchmen at every independent agency we have and put them to work in his administration’s unending campaign of corruption and retribution.”

In a separate opinion on Monday, a narrow Supreme Court majority prevented Trump from removing Federal Reserve Gov. Lisa Cook. Sotomayor pointed to the disconnect as evidence of the “ad hoc” nature of the conservative majority’s rulings. (The court’s liberal justices consistently backed the independence of the agencies today.)

Read the opinions and dissent in full here.

Look out for the full interview with Professor Shugerman later this week on Legal AF’s All Rise News playlist.

Trump also racked up significant defeats today before the Supreme Court. Here’s a quick roundup.

Voting rights victory

The Constitution empowers states with the ability to prescribe the “Times, Places and Manner of holding” congressional elections.

By a 5-4 ruling on Monday, the Supreme Court narrowly affirmed that this principle applies to 30 states that allow voters to cast a ballot postmarked by Election Day but counted later.

Election law experts say it should never have been so close.

“In any other world, its ruling would have been 9-0,” the Center for Election Innovation and Research’s executive director David Becker, a former Justice Department Voting Section attorney, said in an interview with All Rise News. “It would have been an absolute slam dunk ruling, but we got a good 5-4 ruling across ideologies from Justice Barrett.”

Chief Justice John Roberts joined the majority opinion with the court’s three Democratic appointees.

The case of Watson v. Republican National Committee sought to overturn a Mississippi law allowing ballots postmarked by Election Day but received up to five days later to be counted.

Such a ruling would have invalidated similar rules in 30 states and Washington, D.C., which are widely relied upon by overseas and military voters.

In his dissent, Justice Samuel Alito sowed baseless doubt about mail-in voting, claiming that the ruling “leaves open opportunities for voter fraud that may further undermine Americans’ faith in the integrity of this country’s elections.”

Blasting the dissent for “regurgitating conspiracy theories about mail-in voting that have no basis in fact,” Becker nonetheless stayed optimistic about the significance of the narrow decision.

“We are seeing an unprecedented onslaught against our election system, much of it coming from the federal government,” Becker said. “The federal government used to be the partner to the states in running safe, secure, convenient elections but is now seemingly gearing up to be the primary purveyor of disinformation in this next election. But everything they're trying is failing.”

On Monday, for the 10th consecutive time, a federal judge rejected the Trump Justice Department’s attempt to force a state to turn over sensitive voter roll data — this time, in New Hampshire.

Every district and appellate court that has considered the Trump Justice Department’s lawsuits attempting to force the disclosure of state voter data has rejected it, and multiple federal judges have blocked provisions of Trump’s executive orders seeking control over states’ handling of elections.

“There is an unprecedented attack on our system right now, and our system is still holding,” Becker said.

Read the full ruling in Watson v. RNC here.

Look out for the full interview with David Becker later this week on Legal AF’s All Rise News playlist.

Finality for E. Jean Carroll?

The Supreme Court declined to hear Trump’s appeal of a federal jury’s unanimous verdict that he sexually assaulted and defamed E. Jean Carroll, awarding her $5 million in damages.

“Today’s Supreme Court decision affirms once and for all the jury’s unanimous verdict that President Donald J. Trump sexually assaulted and defamed E. Jean Carroll,” Carroll’s attorney Roberta Kaplan wrote in a statement. “His multiple efforts to appeal that verdict have all failed and today’s ruling ends his quest to avoid accountability for his actions.”

Combined with her second verdict, Carroll won a more than $83 million judgment against Trump, plus interest, for sexual abuse and defamation. Trump posted a $91 million bond a little more than two years ago as he pursued an appeal.

Trump’s quest to overturn the first verdict ended like most appeals for would-be Supreme Court litigants: an order denying his petition for a writ of certiorari without explanation.