On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
The blessings of liberty in this country and other functioning democracies depend in important ways on something that legal scholars call the “internal separation of powers.” Prosecutors in robust democracies, for example, enjoy some separation from the head of state, as they are expected to apply the law neutrally. In early America, prosecution was lodged outside of presidential control, among private citizens, state officials, and distant United States Attorneys. Electoral commissions and media regulators, here and abroad, often consist of representatives of both parties in order to ensure fair elections and even-handed government treatment of ideologically diverse broadcast media.
Elected authoritarians in Turkey and Hungary defeated the internal separation of powers undergirding their democracies and gave themselves control over entities vital to a well-functioning democracy by obtaining the power to remove officials devoted to the rule of law from these entities. Once they secured direct or indirect head-of-state control over government officials, they used that power to undermine the rule of law and democracy. For example, Hungary’s prosecution service, once under Prime Minister Orbán’s control, took to announcing prosecution of political opponents on the eve of elections, only to drop charges afterward to avoid the embarrassment of a judicial check. Turkish President Erdogan’s prosecutors singled out political opponents for prosecution for violations of the tax code. More recently, they have charged political opponents with terrorism-related crimes. At the same time, rampant corruption in authoritarian states escapes prosecution. These countries’ captured electoral commissions bend the rules to favor the ruling party, and their media authorities work to convert major media into government propaganda organs.
The Trump administration has asked the Supreme Court to invalidate a statutory provision written to ensure the independence of the director of the Consumer Financial Protection Bureau’s (CFPB) by making clear he or she may only be fired for cause. This provision enables the president to fire the director for failing to faithfully execute the law. But the president under this statute cannot fire the director for prosecuting companies whose CEOs support the president or for declining to investigate innocent companies headed by an opponent of the president. The Trump administration argues that the Constitution gives the president sole control over the executive branch of government and therefore allows him to fire government officials for no valid reason whatsoever.
While this one provision may seem insignificant, the principle at stake is enormously important. Although some of the Framers sought to give the president sole dominion over the executive branch of government by allowing him to appoint its officials “at pleasure,” meaning subject to firing at will, they ultimately rejected this. Instead, the Constitution only expressly authorizes the Senate to remove government officials (after impeachment in the House). The Constitution also expressly authorizes Congress to write general rules governing the executive branch of government, like the rules governing terms of office and the grounds for removal. Alexander Hamilton explained in the Federalist Papers that the Constitution aimed to prevent appointment of “obsequious instruments” of presidential pleasure and that the need to get Senate approval for removal of officers would provide for stable administration of the law.
While the Supreme Court abolished Senate control over removal outside the impeachment context in 1926, it has never held that the Congress has to leave the president free to fire all high government officials for political reasons. But that is the principle the Trump administration is fighting for in the CFPB case. The Court should show a bit of judicial modesty and not adopt a new constitutional rule that would prevent Congress from protecting the rule of law upon which our democracy depends.