More Good News on the President's Priorities at the Supreme Court

Decisions on cases related to President Trump's top priorities--curbing illegal immigration and bleeding the Deep State--at SCOTUS this week portend bigger victories ahead.

The Trump administration is celebrating two more victories handed down Monday by the Supreme Court with the latest developments appearing to signal bigger wins ahead on two White House priorities: the deportation of illegal immigrants and the removal of political appointees from so-called “independent” agencies.

First, Chief Justice John Roberts “stayed”—put on hold—a decision by the D.C. courts that overturned the president’s firing of Rebecca Slaughter, a member of the Federal Trade Commission. Trump fired Slaughter, who had been appointed by Trump in 2018 and reappointed by Joe Biden in 2023, earlier this year; the White House sent Slaughter a letter simply stating, “your continued service on the FTC is inconsistent with my Administration’s priorities.”

Slaughter, like others removed by the president, sued. She, also like the others, argued federal law and SCOTUS precedent requires the president to demonstrate “inefficiency, neglect of duty, or malfeasance in office” as a basis for removing a political appointee.

In July, D.C. District Court Judge Loren Alikhan ruled in Slaughter’s favor and ordered her reinstated to “her lawful position as an FTC Commissioner,” a decision upheld by a 2-1 panel of the D.C. appellate court last week.

But Neomi Rao, a D.C. appellate court judge appointed by Trump, disagreed with her two Obama-appointed colleagues on the panel and criticized the judiciary’s “unprecedented” breach into executive branch territory. “An injunction ordering reinstatement of an officer removed by the President likely exceeds the Article III judicial power and encroaches on the President’s exercise of the Article II executive power,” Rao wrote on September 2. “The Constitution establishes three departments of the federal government, and the so-called independent agencies are necessarily part of the Executive Branch, not some headless fourth branch,” she continued.

With that, Rao got straight to the heart of the matter. Despite the headache caused by dealing with a flood of lawsuits filed by disgruntled Democratic appointees, the Trump administration is performing a vital extra-Constitutional cauterization desperately needed after decades-long mission creep that slowly but inexorably established a fourth branch of government that is opaque, unaccountable, and, in their own thinking, impervious to presidential and/or Congressional oversight. Or, as Donald Trump describes it, the “deep state.”

Worse for the self-anointed headless heads of the fourth branch is that SCOTUS continues to rule against them. The highest court has recently upheld the president’s firing of several political appointees at the Office of Special Counsel, the Merit Systems Protection Board, and the National Labor Relations Board to name a few—firings that had been reversed by lower court judges in Washington.

“The text, structure, and original meaning of the Constitution all point in the same direction—the President’s control and supervision of the Executive Branch requires that he be able to remove his officers at will. It follows that Congress cannot limit his removal power,” Rao, considered a contender for the Supreme Court, further stated.

Is Cook Cooked?

This should make Lisa Cook, the scandal-ridden member of the Federal Reserve Board fired by President Trump last month, and her celebrity attorneys very nervous. Cook is seeking to block her termination on the same basis as Slaughter and those before her by insisting federal law, in this instance the Federal Reserve Act, demands a “for cause” reason for the removal. Both sides are arguing whether a criminal investigation into Cook for what appears to be an airtight case of mortgage fraud committed before she was confirmed is “cause” enough to give her the boot under the statute.

Abbe Lowell, one of Cook’s attorneys, claims “any such pre-office offense” does not meet the statutory standard; D.C. Judge Jia Cobb sounded skeptical of that argument during a hearing last month, but is nonetheless weighing Cook’s motion for a temporary restraining order to keep her at the Fed.

But will the Supreme Court be forced to answer Rao’s legit concerns about a fourth branch of government? While the Supreme Court concluded earlier this year that “the Federal Reserve is a uniquely structured, quasi-private entity,” a more thoughtful examination is needed into exactly what that means in this day and age as the Fed amasses more power to dictate national economic policy.

If a president is prohibited from firing a highly-influential appointee—gifted with a 14-year term no less——of his predecessor under the guise of “independence,” precisely where does that fall under our constitutional system? Whose “independence” is protected?

ICE ICE Baby

Perhaps more important to the president’s agenda is the decision by SCOTUS to put on hold a California judge’s order halting ICE raids in Los Angeles, which began in June. The following month, Judge Maame Ewusi-Mensah Frimpong, a Biden appointee, granted a temporary restraining order sought by immigration activists claiming the raids were unconstitutional and racist among other allegations.

Frimpong agreed. “Roving patrols without reasonable suspicion violate the Fourth Amendment to the Constitution,” she wrote. Frimpong also prohibited law enforcement from relying on race/ethnicity, language, presence at areas frequented by illegals, and “the type of labor one does” as a basis for a raid or stop.

But in a 6-3 decision—with the liberal harpies per usual siding against the Trump administration along with another unhinged tirade by Sonia Sotomayor who said she “cannot stand idly by while our constitutional freedoms are lost”—the court paused Frimong’s directive allowing the ICE mission to proceed for now.

Writing for the majority, Justice Brett Kavanaugh offered a forceful defense of the president’s policy, noting “at least 15 million people are in the United States illegally” and that at least 2 million illegals live in the Los Angeles area alone. “Immigration stops based on reasonable suspicion of illegal presence have been an important component of U. S. immigration enforcement for decades, across several presidential administrations,” Kavanaugh wrote in his 10-page concurrence.

He also addressed the separation-of-powers dispute looming over every immigration-related case: the ability of the judiciary to intervene.

“Especially in an immigration case like this one, it is also important to stress the proper role of the Judiciary. The Judiciary does not set immigration policy or decide enforcement priorities. Article III judges may have views on which policy approach is better or fairer. But judges are not appointed to make those policy calls. We merely ensure, in justiciable cases, that the Executive Branch acts within the confines of the Constitution and federal statutes.”

Is a SCOTUS Rebuke of ‘Robed Crusaders’ in the Making?

Kavanaugh appeared to be channeling fellow Trump appointee Andrew Oldham, a judge on the Fifth Circuit Court of Appeals. In a scathing dissent related to court-ordered halts on the president’s Alien Enemies Act, Oldham accused his colleagues of a collective double-standard when it comes to Trump’s immigration policies. “For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the Alien Enemies Act (“AEA”),” Oldham wrote in a barnburner 130-page opinion on September 8. “For President Trump, however, the rules are different.”

Lower court judges, Oldham accurately assessed, are not in a position to second-guess the expertise or purview of the executive branch in immigration matters. “That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief.”

Those words will make it back to the Supreme Court in due time; the 5th Circuit took up the case in May at the direction of the highest court. (My backgrounder here. Criticism of SCOTUS’ handling of the AEA case by one of Oldham’s colleagues is here.)

Oldham and Kavanaugh are the latest to acknowledge the judiciary’s nearly nonexistent authority in reviewing immigration policy including the Alien Enemies Act. But now six months after the issuance of the AEA, the president is still prevented from enacting the policy due to the activism of lower courts; SCOTUS can’t act fast enough.

The administration, however, should feel cheered by this week’s success at the highest court. And if the president ultimately prevails in drastically reducing the threat of unchecked illegal immigration and the threat of an unchecked fourth branch of government, the country wins, too.