President Trump’s dismissal of independent agency heads continues at a blistering pace. He removed Gwynne Wilcox, a member of the National Labor Relations Board, in January, shortly after taking office. In February, he removed a member of the Merit Systems Protection Board, which is charged with protecting federal workers against partisan interference, leaving that body without a quorum. Last month he removed the two Democratic members of the Federal Trade Commission. Cases challenging these removals are making their way through the lower courts.
You might be wondering why Trump is confidently firing these people when existing statutes not only protect them from removal, but also have the imprimatur of a venerable Supreme Court ruling that has been on the books since 1935.
Trump is betting that the Supreme Court will ultimately overturn that precedent because the current Court’s faithful adherence to cases on the books, known as stare decisis, is comparable to Robert F. Kennedy Jr.’s faithful adherence to science. The Court’s dismissal of a half century of abortion rights when it overruled Roe v. Wade received the most attention, but it is not the only example of the Court’s willingness to reconsider its cases, no matter how longstanding or consequential. The Court upended the framework it established four decades ago for reviewing decisions by government agencies, fundamentally altered labor law by overturning on First Amendment grounds a forty-year-old decision that allowed unions to collect the costs of contract negotiations from non-union members, took the courts out of the business of reviewing partisan gerrymandering claims by dispatching a case from the 1980s, and the list goes on.
That is why the Trump Administration is on its firing spree. It is banking on the Supreme Court overruling the 1935 case of Humphrey’s Executor v. United States, in which the Court held that Congress has the authority to create independent agencies whose heads cannot be removed at will by the president. Many conservatives have groused for decades that the Supreme Court made a mistake in Humphrey’s Executor because they believe the Constitution’s vesting of executive power in the president gives him the power to fire agency heads and Congress cannot restrict that power by statute.
The Trump Administration has informed Congress that it will ask the Supreme Court to overrule Humphrey’s Executor, and the Court is likely to add another case to the stockpile of longstanding precedents that have been cast aside. The current Court has already expressed its sympathy with this broad vision of executive power. Just a few years ago, it held a removal restriction on the head of the Consumer Financial Protection Bureau was unconstitutional, but it did not overrule Humphrey’s Executor because it distinguished agencies with a single-head, like the CFPB, from those with multi-member boards, like the FTC, the agency at issue in Humphrey’s Executor. Justices Thomas and Gorsuch have already stated their view that Humphrey’s Executor should go, and it seems likely they will get the additional votes they need to prevail.
The reason stare decisis is a vaunted legal principle is that stability in the law is critical to uphold expectations, give predictability to the law, and avoid just this kind of erratic testing of the waters we are seeing Trump engage in. Had the Roberts Court shown a commitment to stare decisis, it is unlikely we would see the same aggressive pushing of boundaries that we are seeing from Trump now.
The Roberts Court recognizes that stare decisis is important for stability and predictability, but when it has overruled prior cases, it has argued that those values were outweighed by the fact that the cases were “egregiously wrong from the start” based on the original meaning of the Constitution. This is the constitutional interpretive theory of originalism, and under the Roberts Court, it has produced outcomes conservatives love.
Liberals, for their part, have tended to fight this battle on defense, desperately trying to resuscitate stare decisis as a respected principle or arguing against originalism as just a veneer for the justices’ policy preferences. This appeal to institutional norms has fared poorly. As the podcasters from Strict Scrutiny have colorfully put it, “Stare decisis is for suckers.”
The new normal is that precedents are up for grabs when parties can claim they violate the original meaning of the Constitution, which is why Trump is firing agency heads with abandon. He is likely to win his bet that the Court will ultimately take his side.
This does not mean all is lost for liberals. There is at least one area in which they can go on offense and test the Court’s willingness to overrule precedents that are “egregiously wrong” if one takes an originalist lens. Over the past five decades, the Supreme Court has ruled for the government in several key criminal cases based on naked results-oriented arguments in defiance of the Constitution’s original meaning. I outline several such cases and provide the relevant history in my book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. They include, for example, decisions that have allowed people who are presumed innocent to be jailed before trial because they are deemed dangerous, authorized the police to stop and search people without a showing of probable cause that they committed or are committing a crime, and approved of coercive tactics by prosecutors threatening longer punishments for people that want to exercise their right to a jury trial. None of these decisions can be squared with the original meaning of the Constitution, and they were all huge departures from settled understandings when they were decided. They were, by any measure, “egregiously wrong.”
If it is now open season on precedent, the Court should reconsider not only the ones conservatives have bemoaned, but all the cases that cannot withstand scrutiny under the Court’s current methodological approach. The Court will either establish that it is a principled body willing to overturn precedent in the service of both conservative and liberal results, or it will be exposed as a policymaking body that selectively adheres to originalism only when the outcomes match a conservative agenda. Trump should not be the only one testing the limits of the Court’s commitment to precedent and originalism.
