Why the Supreme Court decision on firing independent agency heads is a big deal - Don Moynihan

[In It to Win It]

https://donmoynihan.substack.com/p/why-the-supreme-court-decision-on

A question I’ve gotten from reporters is how long it will take the public sector to recover from the damage Trump has done. There is no easy answer to this, but I highlight one variable that will matter a lot: how much the Supreme Court embraces unitary executive theory (i.e., the idea that the President has king-like powers).

Why does this matter? A maximalist interpretation of the unitary executive theory holds that almost any Congressional (or judicial) constraints on presidential power are unconstitutional. In more specific terms, it would hold that the civil service system itself is unconstitutional. If the court adopts that reasoning, then it becomes very hard to rebuild state capacity.

Because with unitary executive theory, there is no actor that can make credible long-term commitments to public servants.

With unitary executive theory, Congress cannot write robust new legislation that modernizes the civil service and stops politicization. A President could just ignore it. Even if Trump leaves office, and a new President looks to restore nonpartisan competence, their promises are only good for four or eight years before another President can come in and rip up the terms of their employment. And over time, why would even a good government President invest effort in restoring capacity if their successor can undermine it?

With unitary executive theory, the public sector becomes permanently viewed as an unstable and chaotic workplace that we are seeing now. The most capable potential employees decide its not worth the bother, and the workforce becomes a mix of people who cannot get a job elsewhere, and short term political appointees. (The irony here is that advocates of unitary executive theory say it is not just constitutional, but will improve the performance of the public sector, notwithstanding the omnishambles we are witnessing now).

SCOTUS gave us another hint yesterday. They decided to allow Trump to remove Democratic members of the Merit Systems Protection Board, and the National Labor Relations Board. The decision was 6-3. The court says that the President can move forward with the firing until they rule on the merits of the case, which is unlikely to happen until the next Supreme Court term. It is very hard to see the court deciding that the firings are fine now, if there is a real prospect that they will change their mind in the future.

[newdeal2]

1. Depressing read

Rec

[elocs]

3. Who comes to DU to read good and encouraging news? It rarely disappoints. n/t

[muriel_volestrangler]

2. Mark Joseph Stern on BlueSky:

BREAKING: The Supreme Court just effectively overruled 90 years of precedent on the shadow docket, greenlighting Trump's firing of multi-member agency leaders while their cases are pending—despite Congress' effort to protect them against removal. A huge decision.

The Supreme Court goes out of its way to say that its order today does NOT allow Trump to remove members of the Federal Reserve because it is "uniquely structured" and has a "distinct history tradition." (I do not think those distinctions hold water.)

Kagan's dissent is scorching and worth reading in full. She calls out the majority for effectively overruling Humphrey's Executor on the shadow docket and allowing Trump to break the law without even awaiting the Supreme Court's permission. She is alarmed.

BTW the historical basis for the "unitary executive theory" that the Supreme Court embraced today is total bunk, just an egregious, bad-faith misreading of history. It's pure bullshit. A court with integrity would acknowledge its mistake instead of doubling down.

BTW the historical basis for the "unitary executive theory" that the Supreme Court embraced today is total bunk, just an egregious, bad-faith misreading of history. It's pure bullshit. A court with integrity would acknowledge its mistake instead of doubling down. ndlawreview.org/interring-th...

— Mark Joseph Stern (@mjsdc.bsky.social) 2025-05-22T21:25:43.629Z

Lawyers, Guns & Money blog:

Overruling 90 years of precedent (except for the Fed ) in an unreasoned four-paragraph opinion for Daddy Trump

To elaborate on Paul’s post below, the Court today overruled the Court’s unanimous 1935 opinion holding that Congress can require that members of executive agencies it creates to be fired only for cause sub silentio. (Literally — as Kagan observes the Court’s opinion does not even cite the controlling precedent.) The Court’s apparent new rule is indeed just royalism, essentially proceeding as if Congress has no interests worth even being considered:
...
As Kagan says, a major tell in the opinion is that it sees the only competing interest belonging to the officers themselves, ignoring the strong interest the people and their representatives have in having their statutorily expressed will honored

https://www.lawyersgunsmoneyblog.com/2025/05/overruling-90-years-of-precedent-except-for-the-fed-in-an-unreasoned-four-paragraph-opinion-for-daddy-trump

[Nevilledog]

4. Destructive decision ignored by legacy media because it's too complicated to explain.