Much of what you need to know about who rules America can be found in two Supreme Court opinions released today. They reinforce how the law as interpreted by this Court is malleable depending on whom it’s applied to.
If you work in the executive branch, you can now be fired by the president for whatever reason or no reason at all, even if you were appointed to what was once called an independent agency with quasi-judicial and quasi-legislative functions like the Federal Trade Commission, even if the law creating the agency said you needed a reason. This new standard overturns 91 years of precedent and is now the law, in every case—except if the agency you work for is the Federal Reserve.
That’s the effect of Trump v. Slaughter and Trump v. Cook, opinions that were released simultaneously this morning. That they were written by the same person, Chief Justice John Roberts, only adds to an absurdity that can only be reconciled by the truism that money rules the world.
Trump v. Slaughter overrules Humphrey’s Executor, a 1935 ruling that affirmed the FTC’s statute, which says that commissioners can only be fired for cause (specifically, “inefficiency, neglect of duty, or malfeasance in office”). Several independent agencies had similar for-cause provisions, but that’s all gone, deemed a violation of the separation of powers.
None of these independent agencies will ever operate the same way again. They historically have been set up as five-member panels, with at least two from the opposite party. But Trump has fired practically every Democrat in these agencies, and in his second term not a single Democrat has been nominated to fill those positions. That’s likely to be the new standard: If presidents can fire any member of the executive branch at will, why would anyone from the opposite party willing to criticize executive branch decisions be allowed to stay in the government?
You can make at least a colorable argument that a president should be allowed to have control over their subordinates, despite the damage it does to an agency structure set up by Congress. But when you add in the carve-out for the Federal Reserve, it quickly becomes totally ridiculous. There is no way to hold the two rulings together at once.
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In Trump v. Cook, Roberts—the same guy who wrote the Slaughter ruling—extols America’s “long tradition of independent central banking” to justify allowing the statutory for-cause provision to stand for Fed governors. The Fed was literally established one year before the FTC, and both have substantially similar language around removal. Roberts justifies this by saying that there have been central banks since before the Constitution—but there was also a postal service before the Constitution, yet the precedent Roberts relied upon in Slaughter, a 1926 opinion called Myers, allowed the president to fire a local postmaster at will.
“Acceptance of the Government’s position would in effect transform the Federal Reserve’s for-cause protection into at-will employment—an interpretive leap out of step with the statute Congress enacted and our Nation’s tradition of central banking protected from political interference,” writes the chief justice in Cook, the same man who precisely transformed the FTC’s for-cause protection into at-will employment, out of step with the statute Congress enacted and 91 years of tradition, on the same day, in Slaughter.
This idea that monetary policy simply must be “politically independent,” but holding corporations accountable, adjudicating labor law, and other agency functions can be done at the sole discretion of the White House, tells you all you need to know about the role of the money power and of everything else in America. Roberts made a fictitious differentiation so bankers could breathe easier. Period, end of sentence.
P.S.: On a more surprising note, the Court preserved a Mississippi law that allows ballots postmarked by Election Day but arriving to election offices afterward to be counted. Justice Amy Coney Barrett ruled that “nothing in the federal election-day statutes requires ballots to be received by election day.” The Postal Service is not necessarily postmarking ballots as they receive them, though a lower court struck down post office efforts to tie mail ballot delivery to handing over voter rolls to the White House.
The larger issue here is that there appear to be five votes on the Court affirming that election laws are reserved for the states. That’s an important indicator as Trump continues his attempts to meddle.
