Supreme Court: No to Christians, Yes to the Fed
Two recent deicsions show several justices aiming for particular outcomes instead of judging on legal merits.
The U.S. Supreme Court issued two important decisions last Thursday, neither of them permanent and only one of them good.
The Court was deadlocked 4-4 over Oklahoma Statewide Charter School Board et al. v. Gentner Drummond, Attorney General of Oklahoma, releasing a one-sentence decision upholding a lower court’s ruling against Oklahoma’s authorization of the nation’s first publicly funded religious charter school. The decision included no further information other than a notice that Associate Justice Amy Coney Barrett recused herself.
The case considered rights of equal access to government programs and the definition of state action, notes Tyler O’Neill at The Daily Signal:
The U.S. Supreme Court had taken up the case to examine two questions: whether the education decisions of a privately owned and operated school constitute state action because the school has a contract with the state, and whether the First Amendment’s free exercise cause prohibits—or the establishment clause requires—a state to exclude religious schools from its charter school program.
The decision does not answer either of those questions explicitly, merely reflecting a failure to come to agreement on them. The ruling, however, contradicts the Court’s movement in recent years to require states to allow religious organizations equal access to general state benefits that non-religious individuals and organizations enjoy. The decision sets no precedent, so these issues will remain in contention.
Based on the justices’ comments during oral arguments last month, it is probable that either Chief Justice John Roberts or Justice Neil Gorsuch sided with the three liberal judges to halt the charter authorization. It is a bad decision that reverses the Court’s recent trend toward protecting equal government treatment of religious and non-religious people and institutions.
The Court issued a much better decision on that same day, indicating that it will affirm the president’s authority to fire members of independent boards created by federal law. Ruling in Trump v. Wilcox, the Court granted “a stay of orders from the District Court for the District of Columbia enjoining the President’s removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively.”
Trump dismissed Gwynne Wilcox from her position as chair of the NLRB on January 27 of this year, and he removed Cathy Harris from her Merit Systems Protection Board position on February 10.
The Court’s unsigned order granting the stay reflected the majority justices’ opinion that the Trump administration is likely to win the case and restoration of executive power to someone the president fired would do more harm to the country than any good it would accomplish for the individual who had been dismissed:
Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 215−218 (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.
Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented from the ruling. In the lengthy dissent, Kagan states that the decision contradicts the Court’s longstanding precedent in its 1935 ruling in Humphrey’s Executor v. United States. In that decision, the Court established that a president could not “remove an officer from a classic independent agency—a multi-member, bipartisan commission exercising regulatory power whose governing statute contains a for-cause provision,” Kagan writes. In addition to the NLRB and MPSB, Kagan argues,
… there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good.
Far from “advancing the long-term public good,” Humphrey’s Executor unleashed the growth of an unaccountable administrative state by making these agencies independent of the president. In Humphrey’s Executor, the Court ruled against President Franklin Roosevelt’s firing of Republican-appointed (twice) Federal Trade Commission member William Humphrey. The Court cited agency independence as its aim in establishing the rule: “For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will,” the Court stated.
Agency independence may or may not be a good thing, but the Constitution gives the president full authority over the Executive Branch regardless of Kagan’s or the 1930s Court’s assessment of the costs and benefits of that choice, as the decision in Trump v. Wilcox notes.
Kagan observes that the majority decision makes a point of excepting the Federal Reserve from executive oversight of this sort: “The majority closes today’s order by stating, out of the blue, that it has no bearing on ‘the constitutionality of for-cause removal protections’ for members of the Federal Reserve Board or Open Market Committee.”
Kagan correctly criticizes the majority’s reasoning for that conclusion:
[T]he Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s. So the majority has to offer a different story: The Federal Reserve, it submits, is a ‘uniquely structured’ entity with a ‘distinct historical tradition’—and it cites for that proposition footnote 8 of this Court’s opinion in Seila Law. Ante, at 2 (citing 591 U. S., at 222, n. 8). But—sorry—footnote 8 provides no support. Its only relevant sentence rejects an argument made in the dissenting opinion “even assuming [that] financial institutions like the Second Bank and Federal Reserve can claim a special historical status.” And so an assumption made to humor a dissent gets turned into some kind of holding. Because one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, a simpler—and more judicial—approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s.
As she does throughout her dissent, Kagan shows here that her main concern is to get the consequence she wants: Court affirmation of the administrative state. Her reference to the majority’s proffered exception for the Federal Reserve indicates, correctly, that it shows the majority justices are doing so in pursuit of real-world consequences, not fidelity to the Constitution, which motivates the rest of their decision.
The majority may be contemplating an argument that shows the Federal Reserve is completely different from these other agencies and is not essentially part of the Executive Branch. A reluctance to scare the markets, however, does not justify the majority’s decision to carve out an exception without stating a good reason for it.
In addition, the notion that the Federal Reserve should be free of constitutional scrutiny is laughable. The U.S. dollar has lost 97 percent of its value since 1913. That does not sound like much of a “long-term public good” to me.
An article by the Constitutional Accountability Center quotes Catholic University Law Professor Chad Squitieri as saying, “It’s not as scary as it might sound. If the Fed is politically accountable to the president, well, we trust the president with the nuclear codes. We can also trust the president with managing the Fed.”
A constitutionalist decision requiring reforms to the Federal Reserve, or even having to end it altogether, might well be another great public benefit showing the wisdom of the nation’s founders.