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.