Justice Sonia Sotomayor delivered a sharp dissent from the bench on Monday after the court overturned a nearly century-old precedent on presidential firing power, arguing the majority’s decision grants President Trump and future presidents “unbridled authority” that undermines the separation of powers.
“Put simply, today the majority reshapes our Government,” Sotomayor wrote in a 49-page dissent joined by fellow liberal Justices Elena Kagan and Ketanji Brown Jackson.
“Dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President’s hands,” she added.
The high court ruled in a 6-3 decision that Trump can sack Federal Trade Commissioner (FTC) Rebecca Slaughter, a Democratic appointee, without cause.
The ruling upends the landmark 1935 decision in Humphrey’s Executor v. United States, which found that Congress could restrict the president from removing the heads of certain federal agencies at will.
Sotomayor argued that overruling Humphrey’s will “unleash only chaos” for the agencies, Congress and lower courts in future removal determinations because the majority “simply refuses to explain where its theory leads or where it ends.”
“Today, the majority replaces 90 years of proven, workable practice with a half-baked theory of executive power that is simultaneously all encompassing yet also subject to necessary but undefined exceptions,” the liberal justice wrote. “The one thing that does appear to be clear going forward is that chaos will follow.”
She further argued that the historical precedent should have prevented Humphrey’s from being overturned, even if the court found it was wrong.
“Nothing in the text, history, or values of the Constitution shows that Humphrey’s was wrong or that FTC Commissioners cannot enjoy for-cause removal protection,” Sotomayor wrote. “Yet even if the majority were right about all of that, it still would not be enough to justify today’s destabilizing decision.”
The liberal justice also acknowledged that while the decision did not go so far as to eliminate the FTC and other implicated agencies, it effectively reshapes how they operate.
“It is undeniable, however, that those agencies will be transformed in ways that those who created them never could have expected and actively sought to avoid, fundamentally recalibrating the balance of power in this country in the process,” she concluded.
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