The Supreme Court’s 2019-20 term started on Monday, but one of the biggest cases, on expanding presidential power, isn’t on the docket — yet. It will probably be soon, though, because President Trump’s Justice Department and other plaintiffs took remarkable steps in September to get the Supreme Court to take cases presenting the issue squarely about the reach of the president’s firing authority over independent agency heads, and Justice Brett Kavanaugh invited these audacious challenges to settled precedents when he was on the appellate court in Washington.
First, the Department of Justice asked the court to strike down the job security protections for the head of the Consumer Financial Protection Bureau, which was Senator Elizabeth Warren’s brainchild. Such restrictions on a president’s removal power, the argument goes, violate the separation of powers. Afterward, Fannie Mae and Freddie Mac shareholders filed a surprising petition making a similar argument about the Federal Housing Finance Agency.
But these arguments overlook an important constitutional text that applies to the president’s powers: the duty of “faithful execution.” That obligation already limits presidential discretion, and it gives Congress the power to apply “good faith” or “good cause” limits on the president’s removal authority.
The version of the “unitary executive” put forth by Mr. Trump, the Justice Department and the shareholders would open the door for a president to fire for any reason — even personal reasons unrelated to the public interest or even for no reason at all — any head of an administrative agency, including the heads of “independent agencies” like the Consumer Financial Protection Bureau as well as the Federal Reserve, the Federal Trade Commission and the Nuclear Regulatory Commission. (These agency heads are nominated by the president and confirmed by the Senate.)
The documented enthusiasm of conservative justices on the Supreme Court for reining in the administrative state has a real chance of upending an arrangement put in place by the Supreme Court in 1935 about the constitutional viability of these agencies. They have been vital to promoting expertise, protecting bipartisan oversight and regulating a modern economy without overstretching presidential power.