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To understand how much the American right has changed, consider its journey from fiercely resisting President Franklin D. Roosevelt’s efforts to expand executive power to surpassing them. A Supreme Court opinion yesterday gave Donald Trump a big win by allowing him to fire members of the so-called independent regulatory agencies. (At least, they used to be independent.)
The majority ruled that the president could remove these officials for now, with arguments to come later. The opinion is not conservative in any meaningful sense. It essentially overturns 90 years of precedent, and it does so using the Court’s “shadow docket,” which means an unsigned opinion delivered typically without oral arguments. Although couched in mild terms as a stay on lower-court rulings, this ruling—if it holds—will signal a radical shift that heralds a new era of big government.
These agencies—such as the Federal Communications Commission and the National Labor Relations Board—have a hybrid structure established by law. The president appoints members, and the Senate confirms them; they make their own decisions and are not directed by the White House. For the authors of Project 2025, the blueprint for Trump’s administration, they are a major problem. “What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought, the head of the Office of Management and Budget and an intellectual architect of Project 2025, told The New York Times in 2023. (I lay this out in detail in my recent book about Project 2025.)
In allowing the firings of members of these agencies, the right-wing majority would invalidate Humphrey’s Executor v. United States, a 1935 Supreme Court ruling. At the time, Roosevelt was looking to seize power for the executive branch, and American conservatives were horrified. The Democrat had found that William Humphrey, a staunch small-government member of the Federal Trade Commission, was an impediment to his agenda, and fired him. Humphrey sued and ultimately triumphed—posthumously—with a 9–0 Supreme Court ruling agreeing that Roosevelt could not remove him.
The right has long resisted centralization of power in the presidency and viewed Roosevelt as a boogeyman. But the MAGA right has embraced his approach, if not his policies. Congress very clearly did not intend for these agencies to be under presidential control, but Vought and his circle believe that the structure is unconstitutional. “There are no independent agencies. Congress may have viewed them as such—SEC or the FCC, CFPB, the whole alphabet soup—but that is not something that the Constitution understands,” Vought told Tucker Carlson in November. A major goal of Project 2025 is to get the Supreme Court to overturn Humphrey’s, and now that goal is in sight.
The reasoning of yesterday’s opinion is sometimes bizarre. The Trump administration argues that because these agencies function to execute the law, they ought to be under the control of the executive—that is, the president. The majority wrote that it believes that the administration is likely to prove that the agencies do indeed “exercise considerable executive power.” Having accepted that argument, it concludes 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.”
In other words, the majority argues that even though the existing system has been in place for 90 years, it is too dangerous to leave in place for a short time longer and must be set aside—even if the Court ultimately changes its mind and reinstates the members after oral arguments. This is not conservative: It neither takes a cautious approach toward change nor conforms to stare decisis, the idea that courts should defer to precedent. As Justice Elena Kagan wrote in dissent, “Our emergency docket, while fit for some things, should not be used to overrule or revise existing law.”
The majority also excludes the Federal Reserve from its ruling, protecting Fed Chair Jerome Powell from Trump’s ire. This is probably a good thing for the nation’s economy, but as Kagan notes, the reasoning is flimsy. The carve-out simply reinforces the idea that the right-wing majority is functioning as politicians in robes, willing to assist Trump but wary of the economic impact of a Powell defenestration.
If the ruling stands, the Supreme Court will have decreed a big shift of power from Congress to the White House. The opinion came the same day that the Government Accounting Office concluded that the administration is violating the Impoundment Control Act of 1974 by withholding funds appropriated by Congress for an electric-vehicle-charger program. This case may be coming to 1 First Street NE soon enough: Trump and Vought also want to get the Court to declare the ICA unconstitutional.
These changes may sound dry and academic, but giving new powers to the president will have direct and serious effects on the way Americans live their lives. We can already glimpse what post-Humphrey’s America might look like, because agency leaders appointed by Trump are already proceeding not as independent actors but as surrogates for the White House.
At the Federal Communications Commission, Chairman Brendan Carr (a Project 2025 author) has used his power to threaten the broadcast license of outlets that are critical of Trump and to bully CBS News over an interview with former Vice President Kamala Harris. And just this week, the Federal Trade Commission reportedly sent the liberal watchdog group Media Matters a letter aligning with a lawsuit from Elon Musk’s X over a report it published about anti-Semitism on X. (Media Matters has denied wrongdoing.) If a Democratic administration took the same action against a similar conservative group, the shouts of “censorship” from the right would be deafening.
With the Supreme Court appearing ready to grant the president this new control, the only obstacle to growing authoritarian power is for Congress to defend its prerogatives—to write laws and create structures for agencies that function without White House interference. The current Congress doesn’t offer much reason for optimism.
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Today’s News
- A federal judge temporarily blocked the Trump administration’s ban on Harvard University’s ability to enroll international students.
- The United Nations secretary-general said that “Palestinians in Gaza are enduring what may be the cruelest phase” of the Israel-Hamas war and that the entire population of Gaza is at risk of famine.
- Multiple people were stabbed by a woman at a train station in Hamburg, Germany, according to officials.
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