Trump’s lawyer pushed for more executive power; Supreme Court justices seem eager to comply

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — President Donald Trump’s lawyer argued on Monday for far-reaching power that would go well beyond his ability to fire officials at the Federal Trade Commission and other independent agencies.

Liberal Justice Elena Kagan warned US Solicitor General D. John Sauer, “Once you’re down this road, it’s a little bit hard to see how you stop.” Sauer rejoined, “So it isn’t that we have gone down this road. I think the court has been down this road.”

The conservative majority has undoubtedly invited the aggressive approach to executive power pressed by Sauer, leading with its 2024 decision protecting Trump from criminal prosecution and emboldening him across the board.

The justices have also in recent decades laid the ground for reversal of a 1935 precedent that would have – as it stands – protected Federal Trade commissioner Rebecca Slaughter and others who’ve been removed by Trump before the end of their respective terms. (Slaughter received an email from Trump in March saying her “continued service on the FTC is inconsistent with my Administration’s priorities.”)

The court majority seemed ready Monday to take the next step and completely overrule the 1935 Humphrey’s Executor v United States. That milestone decision has allowed Congress to establish specialized agencies led by experts shielded from presidential pressure as they, for example, prevent fraudulent business practices, safeguard employee rights or protect consumers.

The dominant sense in the courtroom was that the outcome was predetermined. The conservative majority, over the protests of liberals whose frustration Monday was palpable, already had let Trump remove Slaughter. (The law governing the FTC said commissioners could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”)

Yet, whether the court will go as far as Sauer advocated and dramatically empower the president to fire an even wider swath of executive officials, even on such entities as Tax Court and Court of Federal Claims, remains an open question.

Sauer insisted that Trump’s power to remove officials derives from the Constitution’s Article II provision dictating that the executive power “shall be vested in a President of the United States.”

He adopted the broadest version of what has been called the “unitary executive theory,” which would allow Trump to fire all executive branch officials irrespective of their set terms.

That authority, several justices noted, could extend to members of certain judicial panels that fall under the executive branch. Tax Court judges, for example, are nominated by the president and confirmed by the Senate for set 15-year terms.

Taking advantage of Trump immunity ruling

Sauer drew heavily on the court’s 2024 decision in Trump v. United States, which enhanced the conception of the president’s “conclusive and preclusive” power.

He invoked Trump v. US several times during the intense 2 ½ hours of arguments, beginning with his opening as he asserted that the president’s removal power traces from “the First Congress, and has been confirmed by precedent, including at least nine decisions of this court … through Trump against United States.”

Justice Amy Coney Barrett, one of the conservatives who seemed poised to vote against Humphrey’s Executor, nonetheless chafed at the breadth of Sauer’s assertions.

“So, General Sauer, you argue that the removal power comes from the Vesting Clause, and I understand why you make that argument because that would be the broadest authority … that would be the full unitary executive theory,” said Barrett, one of Trump’s Supreme Court appointees.

“But there are other theories of where the power could be located,” she added. “For example, if it were part of the (Constitution’s) Take Care Clause, then it might be more limited because it might apply only, or give removal authority, only over those officers who exercise significant discretion, or it might be adjunct to the power of appointment, which would mean that inferior officers didn’t come within it.”

Sauer acknowledged that the court could go narrower in the case of Trump v. Slaughter, but the unyielding advocate for Trump, who’s had remarkable success before the high court, continued to argue for the strongest presidential power. The president made Sauer, who won the immunity case for Trump while in private practice, the federal government’s top lawyer before the high court.

Justice Sonia Sotomayor, the senior liberal on the bench, told Sauer that in asking to lift protections for independent administrators, “you’re asking us to destroy the structure of government.”

And she added of his rigid notion of presidential removal power, “You’re putting at risk the independence of the Tax Court, of the Federal Claims Court, Article I courts. You’re putting at risk the civil service. I don’t see how your logic could be limited.”

Sauer suggested such courts would have to be individually assessed, depending on their missions, but emphasized the Trump administration had not challenged the removal restriction of any of those courts.

“Not yet. Not yet,” Sotomayor shot back.

Conservative Justice Samuel Alito suggested that the court need not address such issues in this case.

“Suppose we were to decide the case in your favor, but we did not want to address those other agencies,” Alito posited, “What would you propose that we say so as to reserve a decision on those agencies that may not come before us in the near future or perhaps at any time in the future?”

Sauer said the court could point out that “the federal bureaucracy is vast” and that it was not deciding matters that had not been specifically briefed and argued.

That prompted Kagan to interject, “Once you use a particular kind of argument to justify one thing, you can’t turn your back on that kind of argument if it also justifies another thing in the exact same way.”

Perhaps looking ahead, Kagan added, “and so, you know, putting a footnote in an opinion saying we don’t decide X, Y, and Z because it’s not before us doesn’t do much good if the entire logic of the opinion drives you there.”

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