The Supreme Court Just Knocked Down One of the Final Guardrails Against Dictatorship

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The Supreme Court knocked down one of the final barriers to Donald Trump’s unprecedented consolidation of power on Monday: By an apparent 6–3 vote^[2], the conservative supermajority effectively greenlit Trump’s illegal firing of a Federal Trade Commissioner and teed up the reversal of a 90-year-old precedent that prevents the president from exercising dictatorial control over government.

It is bad enough that the court is clearly planning to let Trump construct the most submissive executive branch in history by purging his opponents from federal agencies. What’s worse, though, is that the supermajority has ushered in this new era of autocratic presidency over the shadow docket, offering almost no public explanation for its radical moves. As Justice Elena Kagan wrote in her dissent, the court’s Republican appointees have elected “to reshape the nation’s separation of powers” in Trump’s favor. And they’re doing so without respecting the process that differentiates legal judgments from bare flexes of partisan muscle.

Monday’s decision in Trump v. Slaughter^[3] marks the Supreme Court’s clearest signal yet that it plans to restructure the federal government by transferring even more power from Congress to the White House. The case began when Trump fired Rebecca Slaughter from the Federal Trade Commission in March—a blatantly illegal act. Congress prohibited the president from removing FTC commissioners like Slaughter without “good cause,” and no such cause existed here. Rather, Trump terminated Slaughter because she was a Democrat, and he wanted absolute control over the agency. (He fired the other Democratic commissioner, Alvaro M. Bedoya, as well, but Bedoya dropped his suit after taking a new job.)

With Slaughter and Bedoya gone, the five-member FTC now consists of three Republicans and two vacant seats. The GOP commissioners are all Trump loyalists, meaning it effectively operates as an arm of the administration. That’s helpful for the president: The FTC enforces antitrust law, so it can make life difficult for corporations that oppose the current regime, and easier for those who bend the knee. And absent any Democrats, there’s nobody on the commission to object when it wields its authority to punish enemies and reward allies—as the all-Republican FTC is doing today. For instance, the agency launched a baseless investigation^[4] into Media Matters for truthfully informing companies that their ads on X appeared alongside neo-Nazi propaganda. (A federal judge blocked^[5] the inquiry as a violation of the First Amendment.)

Congress, of course, did not intend for the FTC to operate as a political weapon. That’s why it barred the president from firing commissioners without a good reason: Lawmakers intended to insulate the agency from political swings and partisan capture, preventing any president from seizing instant control over its vast powers. In 1935’s Humphrey’s Executor^[7], the Supreme Court unanimously ruled that this protection against removal did not run afoul of the Constitution. Before and after Humphrey’s, Congress created dozens of other independent agencies whose leaders were similarly protected against arbitrary termination. These bodies have, for the last nine decades, interpreted and executed federal law with laudable bipartisan balance—imperfect, but with less political influence (and more competence) than agencies under direct presidential control.

Trump is determined to abolish the arrangement, and the Supreme Court’s Republican appointees are eager to enable him. After returning to office, Trump began firing leaders of various independent agencies protected against removal by law. Lower courts reinstated these individuals, since they believed that Humphrey’s Executor remained good law unless and until it was overturned by the Supreme Court. But in shadow docket orders, the far-right supermajority has sided with Trump^[8], allowing him to fire Democratic agency leaders^[9] in direct violation of the law. These decisions indicated that the supermajority was preparing to kill off Humphrey’s in the near future. But even a cynic might think that it would, for now, draw the line at the FTC. After all, that is literally the same agency^[10] at issue in Humphrey’s itself. So it is not a close case: Binding precedent squarely forbids Trump from firing FTC commissioners, and his effort to do so anyway constitutes direct defiance of the Supreme Court itself.

And yet, on Monday, SCOTUS knocked Slaughter off the agency, freezing a lower court decision that had reinstated her. It didn’t explain why, but the reason is clear enough: In the same order, the justices fast-tracked the case for arguments in December, asking whether it should formally overturn Humphrey’s. Kagan, joined by the other two liberals in dissent, sounded resigned to the inevitability of Humphrey’s demise. But she still objected to her colleagues’ slipshod way of killing it prematurely over the shadow docket. That docket, she wrote, “should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president, and thus to reshape the nation’s separation of powers.”

Why has the court raced to hand Trump an iron grasp over the government? The Republican-appointed justices claim that the president’s “executive power” encompasses the right to fire executive-branch officials. But nothing in the Constitution says so. Nor does history^[15] demonstrate^[16] that the Framers^[17] understood^[18] executive power^[19] to include the right of removal. This so-called “unitary executive theory^[20]” is, in reality, a modern idea grafted onto a mythic past, one that hamstrings Congress’ own (explicit) constitutional prerogative to structure the executive branch. Conveniently, the Supreme Court has embraced this bogus theory just in time to let Trump purge any government official who might object to the MAGA agenda.

SCOTUS has carved out one exception to this new rule: The president, it claims, cannot fire members of the Federal Reserve without good cause, limiting Trump’s control over monetary policy. Yet Trump has tested this limit by attempting to fire the Fed’s Lisa Cook over dubious allegations of mortgage fraud. Lower courts kept Cook on the job, and SCOTUS is currently considering whether to approve her removal. In its Monday order, though, the court also announced that it would decide whether courts even have the power to “prevent a person’s removal from public office” in the first place. Should the supermajority strip courts of this authority, then the Fed’s independence will vanish completely: Even if Trump fires its members illegally, the judiciary will have no ability to put them back in office. It is increasingly difficult to avoid the conclusion that the Supreme Court is dismantling every guardrail that separates democracy from dictatorship^[23].^[21][22]

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