Federal Courts and Nominations

Supreme Court ducks decision on whether president has the power to fire any top federal official

The Supreme Court sidestepped a constitutional dispute Thursday over the scope of the president’s power to fire high-level federal employees.

Instead, by a 7-2 vote, the court ruled administrative law judges who hear stock fraud cases at the Securities and Exchange Commission are “officers” of the United States, not civil servants, because they exercise “significant authority.” That means they must be named by top political appointees, the court said, not hired by other judges tasked by the agency to select them based on merit.

The court brushed aside a request from Trump administration lawyers to broadly declare the president has power to fire any federal official with significant authority, a move seen by some as laying the foundation for firing Special Counsel Robert S. Mueller III, who is handling the probe of Russian meddling in the 2016 campaign.

The narrow ruling in Lucia vs. SEC will give a new trial and a different judge to an investment advisor who was charged, tried and fined for deceiving investors by marketing a strategy called “Buckets of Money.”

But his case reopened a profound dispute over the chief executive’s power to control and remove officials throughout the U.S. government. Since the late 19th century, Congress has extended civil service protection to the vast number of federal employees. Some top appointees are also protected from firing except for “good cause.” They include Mueller, who under the regulations can be removed by Deputy Atty. Gen. Rod Rosenstein only for “misconduct, dereliction of duty, incapacity, conflict of interest or other good cause.”

Usually, administration lawyers defend federal agencies like the SEC in matters before the high court. But in this case, Trump’s lawyers switched sides and urged the justices to rule against the SEC and say the president has the authority to “remove” all officers of the United States.

“The Constitution gives the president what the framers saw as the traditional means of ensuring accountability: the power to oversee executive officers through removal,” Solicitor General Noel Francisco told the court in February. “The president is accordingly authorized under our constitutional system to remove all principal officers, as well all ‘inferior officers’ he has appointed.”

The justices said they did not need to decide now the full scope of the president’s removal power. “We chose not to take up” that question when agreeing to hear the case, and “we once more decline” to decide it, said Justice Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch agreed.

Thomas in a concurring opinion said the framers of the Constitution assumed nearly all federal employees would be considered “officers” subject to political control, “even if they performed only ministerial statutory duties, including record-keepers and clerks.”

The three other liberal-leaning justices issued partial or total dissents.

Justice Stephen G. Breyer said he was troubled the court did not decide whether “officers” are subject to removal by their political superiors. The court’s opinion could suggest that “removal protections are unconstitutional…. The court risks unraveling, step-by-step, the foundations of the federal government’s administrative adjudication system as it has existed for decades, and perhaps of the merit-based civil-service system in general.”

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented and said officials who do not make “final, binding decisions on behalf of the government” should not be subject to hiring and firing by the president. As an example, she said an official “who possesses the mere power to investigate some particular subject and report thereon” is not an officer subject to removal.

Brianne Gorod, a lawyer with Constitutional Accountability Center, said “the court’s narrow opinion was perhaps most notable for what it didn’t say, rather than what it did.”

The ruling did not go very far to clarify which officials are or are not subject to hiring or firing by political appointees, she said, “which means we could see the court revisiting this broader issue in the near future.”

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