Supreme Court expected to greenlight any and all Trump firings

WASHINGTON—The U.S. Supreme Court’s six-justice Republican-named majority seems ready to make Donald Trump a King.

And not just by giving him total, complete, and uncontestable control over every part of the federal government, including as many as 50 independent agencies, among them the National Labor Relations Board, which is what the GOP presidential denizen sought in briefs and in 2-1/2 hours of oral argument before the High Court on December 8.

It also would extend beyond firing anyone and everyone among the nation’s federal workers—from Cabinet members down to janitors—on a whim and for no reason at all. That’s what Trump’s attorney, Solicitor General D. John Sauer, argued. 

“The one who has the power to remove is the person they have to fear and obey,” Sauer declared.

But it could threaten freedom of speech, freedom of the press, and the right of people to protest, peaceably, all guaranteed by the Constitution’s 1st Amendment, too. Not to mention the ability of Congress to establish, by law, independent agencies to serve the interests of the people. Nowhere in the Constitution does it say that everything that Congress legislates is ultimately under the control of the president. The Constitution established a Congress to make the laws and an executive branch headed by the President to carry out those laws.

The three Democratic-named justices are refusing to make Trump a King. So does the AFL-CIO. So do the organizers of No Kings Day on October 18. It drew seven million people into the streets nationwide and tens of thousands more around the world. Organizers plan to stage another No Kings Day, but have yet to set a date.

“If there’s one thing we know about the founders, it’s that they wanted powers separated,” said Justice Elena Kagan, “They wanted the executive, the legislative, the judicial. They didn’t want them all in one place. They wanted them separated across the government, across the different branches.  Easy enough to agree with, right? 

“I agree, with an important caveat that the court said” in a prior case—not the one Sauer wants to overturn after 90 years—“that the sort of exception to all this division was the presidency itself, where the framers consciously adopted a unified and energetic executive. 

“Well, that’s not a caveat,” Kagan deadpanned, as the packed courtroom erupted in laughter. 

Justice Ketanji Brown Jackson put the impact of a ruling for Trump into practical terms—that Trump could replace anybody and everybody with Trump toadies, if he wins.

“Having a president come in and fire all the scientists and the doctors and the economists and the PhDs and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States. This is what I think Congress’s decision is when it says that these certain agencies” are not going to be “directly accountable to the president,” Justice Jackson told Sauer.

“I think there’s a pretty significant danger Congress has actually identified and cares about when it determines that these issues should not be in presidential control. Can you speak to me about the danger of allowing in these various areas the president to actually control the transportation board and potentially the Federal Reserve and all these other independent agencies?” Including, of course, the National Labor Relations Board.

“We can have a government that functions without rule by functionaries. We can have a government that benefits from expertise without being ruled by experts,” Sauer sneered about federal workers and non-partisan professionals.

“The danger here is that we’ll have an Education Department as authorized by Congress, by law, that won’t have any employees in it,” Justice Kagan commented at one point. Which is what Trump is now doing, by executive orders. 

Trump’s reach even extends to curbing basic freedoms of speech, of the press, and the right to petition the government peaceably for redress of grievances, as the Constitution’s 1st Amendment put it. Amit Agarwal, attorney for Trump-fired Federal Trade Commissioner Rebecca Kelly Slaughter, explained that to Trump-named Justice Brett Kavanaugh. Slaughter brought the case to the High Court after Trump canned her, for no reason, this year. 

All of which makes the huge reach of this case vital to everyone in the U.S.

“You have a” friend-of-the-court “brief submitted by the Reporters Committee For Freedom of the Press in this very case that talks about real dangers to freedom of the press, to individual liberty, to free speech rights that would result from saying that agencies like the FCC are all of a sudden subject to at-will presidential removal,” Agarwal said.

“And they discuss the history, just as one example, this precious 1st Amendment right that could in every meaningful sense be jeopardized if we abandon longstanding history and retroactively invalidate the independence of independent agencies.”

There’s already been an obvious nationwide example of Trump’s demands for censoring free speech. 

The Federal Communications Commission, like the Federal Trade Commission and the NLRB, is an independent agency. Brendan Carr, the Trump-named chair of the GOP majority on the FCC, recently threatened to pull the licenses of ABC TV stations unless the network fired late-night host Jimmy Kimmel. It did, but had to reinstate him after a public firestorm cost it billions of dollars in ad revenue.

“If the Supreme Court rules for the president, it will jeopardize the role Congress envisioned for the National Labor Relations Board (NLRB), the Federal Labor Relations Authority (FLRA) and National Mediation Board, the agencies that provide the main legal avenues for workers seeking to form unions, engage in collective bargaining and get justice against union-busting,” AFL-CIO President Liz Shuler said.

Shuler then quoted from the federation’s own friend-of-the-court brief in the Slaughter v Trump case, siding with Slaughter.

“Before Congress created these independent agencies, the government was ‘wary of holding employers legally accountable, and DOJ was loath to bring criminal charges in labor disputes.’ As a result, ‘ineffective enforcement led to significant disruption’ of our economy and ‘widespread, turbulent and often violent strikes.’

“If the Supreme Court allows the president to fire independent agency members at will, it could return Americans to that dark period in history and have serious implications for working people…he could handpick his preferred labor-relations adjudicators to affect the outcome of particular cases.” 

The six Republican-named justices—Chief Justice John Roberts and Justices Kavanaugh, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett—were more accommodating to Trump. 

Justice Barrett mildly probed whether the court’s ruling could be limited to the FTC. The others were even more sympathetic to Trump. Chief Justice Roberts called the 90-year-old case, Humphrey’s Executor, at the heart of the argument over Trump as king, “a decaying husk.” At one point, Justice Alito thanked Sauer for explaining Trump’s stand.

“Duty to execute the law does not give” the president “the power to violate the law with impunity,” Agarwal replied.

The case should be decided by July 1 or sooner. 

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