J. Scott Applewhite/AP Photo
One venerable bit of folk wisdom has forever contended that there are different laws for the rich and the poor. The words inscribed over the doors to the Supreme Court—“Equal Justice Under Law”—were chiseled there to dispel such notions, though the actual decisions of the Court often tend to comport more closely with the folk wisdom.
So it was last week, when the Court granted a stay on the orders of a lower court that enjoined the administration from firing members of the National Labor Relations Board and the Merit Systems Protection Board in the middle of their fixed terms. And while it’s the all-but-invariable practice of the Court not to address issues that are not before it, the unsigned two-page decision granting that stay—thereby enabling President Trump to fire NLRB Chair Gwynne Wilcox and MSPB member Cathy Harris absent the kind of misdeeds that would permit such firings—included a digression stating that the president’s powers of dismissal did not extend to one particular agency, the Federal Reserve. In other words, the president could upset 90 years of settled law by booting members of agencies established to protect workers’ rights, but he had to keep hands off the one federal agency of, by, and for bankers, and the investors who rely on them.
That particular double standard only begins to describe where the Court was headed, of course. The lower court’s ruling that the Court’s majority stayed was based on the unanimous 1935 Court ruling in Humphrey’s Executor, which held that a president couldn’t fire a member of an agency or commission that Congress had established and set fixed terms for their leaders. Those agencies include not just the two in question here, but also such venerable bipartisan defenders of the public interest as the SEC and the FTC. Congress’s intent, which Humphrey’s emphatically ruled passed constitutional muster, was to establish these agencies not as administration agencies like the cabinet departments, but with a degree of independence from the administration, the better to serve the public interest in a nonpartisan way.
In some recent rulings, the six Republican-appointed Supreme Court justices have signaled that they wish to overturn Humphrey’s, in keeping with the right-wing legal doctrine of a unitary executive, in which the distinction between the independent agencies that Congress established and the agencies and departments that the president controls is swept away. In its place, according to the unitary executive theory, the president has power over all agencies, including that of hiring and firing agency leaders at his whim. Last year, the GOP justices broke new ground by holding the president legally immune from punishment for any violations of law he might commit in an official capacity; in edging up to reversing Humphrey’s, which is exactly what their stay on the lower court order does, they’re now ruling that the president’s power exceeds that of congressional statute.
This focus on an all-powerful president seeped into their two-page stay. They wrote, “The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
As if at issue was weighing the president’s urgent need to fire against the two board members’ need to stay. That, of course, wasn’t the issue at all. As Justice Elena Kagan made clear in her dissent, which the two other Democratic-appointed justices joined, the real harm wasn’t to the board members but to the public they’d been appointed to protect. As well, it wasn’t “the Government” that faced the risk of harm if they stayed, inasmuch as the congressional branch of government had established fixed terms for the members, it was merely the president. But then, the Republican justices apparently see their mission as one of presidential aggrandizement and magnification.
But they’re not sitting on the bench just to glorify the president. They’re also there to protect the banks and the mega-investors who are at the center of our political economy. That’s why they believe the president has whatever power he needs to undo boards and agencies set up to protect workers and consumers, but lacks the power to undo the Federal Reserve, which was set up to protect investors. The Republican justices doubtless made this distinction so as not to spook some very spookable markets, but this distinction was also in line with the Court’s pre-1937 and post-1985 history of favoring capital over labor. In her dissent, Kagan makes clear that the Fed’s independent status is no different from that of the independent agencies whose independence her Republican colleagues are now effectively revoking. For now, however, the Republican Court majority seems determined to confirm that old bit of folk wisdom: Hell, yes, the law is different for the rich and the poor, and we’re here to make sure it stays that way.
