Roberts and Kagan prepare for another showdown on executive power

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Chief Justice John Roberts and Justice Elena Kagan are well matched, rhetorically forceful opposites. And they have been clashing for more than a decade over an increasingly relevant question of presidential power: How easy should it be for the president to fire the heads of independent agencies?

That issue, to be aired at the Supreme Court on Monday, has grown more salient as President Donald Trump has attempted to remove multiple officials, including at the Federal Trade Commission, National Labor Relations Board and Federal Reserve.

Their first faceoff occurred in 2009 before Kagan had even joined the court, as she was serving as US solicitor general, standing in the well of the courtroom, with Roberts looking down from the center chair. They tangled over a 1935 precedent that protects agency independence and that now hangs in the balance, Humphrey’s Executor v. United States.

Since his days as a young lawyer in the Ronald Reagan administration, Roberts has argued for vast executive power, including the authority to fire individuals who lead administrative agencies. “Without such power,” Roberts wrote in the 2009 dispute over a corporate auditing board, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

Kagan, in contrast, believes the constitutional separation of powers allows Congress to establish and safeguard certain areas of administrative independence. And she has relied on Supreme Court rulings, including the 1935 milestone, that have allowed Congress to prevent the president from removing independent administrators without sufficient grounds.

Monday’s case was brought by former Federal Trade Commissioner Rebecca Slaughter, who received a March 18 email from Trump saying her “continued service on the FTC is inconsistent with my Administration’s priorities.” (Under the law governing the FTC, commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office.”)

The court’s ruling will extend far beyond Slaughter and the FTC and have vast consequences for specialized regulation in an array of financial, environmental and public safety spheres.

In an early phase of Slaughter’s lawsuit, in September, the Roberts majority reversed a lower court order that would have allowed Slaughter to stay in her post. The move was consistent with Roberts’ opinions that have steadily eroded the reach of Humphrey’s Executor v. United States and signaled he considers it a dead letter.

“The majority may be raring to take that action,” Kagan observed as she dissented from that September action. “But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him.”

More broadly, the eventual ruling could build on other decisions providing Trump more power as he carries out his second term agenda. Last year, Roberts and his fellow conservatives granted Trump substantial immunity from prosecution as it expanded the concept of a president’s “conclusive and preclusive” authority. Then, earlier this year, the court freed the administration from lower-court nationwide orders against his various policy initiatives.

These decisions have dissolved constraints on the president, and if the court were to reverse the 1935 case, the president would be further unburdened by congressional legislation barring him from removing agency officials without sufficient grounds.

Vanderbilt University political science professor John Dearborn, who has studied the Reagan era development of a “unitary executive theory” and Roberts’ writings, told CNN, “He’s had these kinds of ideas for a long time, that the only way that agencies are accountable is if the president has the power to fire people.”

‘I didn’t say anything bad about Humphrey’s Executor’

Before joining the bench, Roberts and Kagan were first-rate oral advocates with their own, respective, steady and tenacious styles. Roberts served as a deputy US solicitor general during the George H.W. Bush administrations and then appeared frequently at the court in private practice. He argued a total 39 cases before the high court.

Kagan, who hadn’t previously argued a case at the high court, was named US solicitor general in 2009 by President Barack Obama. She went on to argue six cases, including the presidential-removal controversy, before Obama nominated her to the bench in 2010 to succeed retiring Justice John Paul Stevens.

Shortly after, when C-SPAN asked her about appearing before Roberts, she said, “If there’s something you want to hide in your argument, he’s probably pretty certain to find it. … You had to be at the top of your game.”

Like Roberts, Kagan graduated from Harvard and obtained a prestigious Supreme Court clerkship before eventually working in the executive branch (first for President Bill Clinton).

Their first public conflict on the subject came when Kagan, as solicitor general, defended the 2002 Sarbanes-Oxley law that established the Public Company Accounting Oversight Board. Board members, under the authority of the Securities and Exchange Commission, could be removed only for “good cause.”

Roberts made clear during the oral arguments that he thought the arrangement of the board unconstitutionally restricted the president’s authority.

Defending the set-up established by Congress to shield the board from any presidential pressure, Kagan repeatedly cited Humphrey’s Executor, in which the justices had ruled that President Franklin D. Roosevelt invalidly removed a member of the Federal Trade Commission. (William Humphrey’s executor continued the lawsuit after he died.)

“I understand the temptation,” Kagan told Roberts, “to say something like, well we don’t really much like Humphrey’s Executor, but we are stuck with it – but not an inch further.”

To which Roberts shot back, “I didn’t say anything bad about Humphrey’s Executor.”

He didn’t have to.

Roberts, who held influential positions in the Reagan and then H.W. Bush administration, had earlier demonstrated his interest in exclusive presidential power, to appoint and fire top officials – part of what has been called the “unitary executive theory” of presidential control.

Vanderbilt Professor Dearborn said that conservative interest in more aggressive control of agencies dates to the Richard Nixon-Gerald Ford era but was fully developed as a legal theory in the 1980s under Reagan.

“In the Nixon administration, the instinct for presidential power and some of the legal rationales were being asserted,” Dearborn said. “Then in the Reagan administration, it gels as a theory.”

Roberts, after his clerkship, first took a job in the Reagan Justice Department and then served as an associate White House counsel. Dearborn pointed to a 1983 memo Roberts wrote to his then-boss, White House counsel Fred Fielding, which included the assertion, “I agree that the time is ripe to reconsider the constitutional anomaly of independent agencies…”

(Dearborn is of one of a group of professors who specialize in this area of the law and signed an amicus brief supporting Slaughter’s legal position.

Roberts’ view that the president alone controls the executive branch emerged in his opinion for the majority in Free Enterprise Fund v. Public Company Accounting Oversight Board (known by legal observers as the “peekaboo case” because of the board’s acronym.) It was heard in December 2009 and decided in June 2010.

“The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so,” Roberts wrote, declaring the board’s “for cause” removal structure unconstitutional.

“Without the ability to oversee the Board, or to attribute the Board’s failings to those whom he can oversee, the President is no longer the judge of the Board’s conduct,” Roberts said. “He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith.”

Roberts was joined by fellow conservatives Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Joining Justice Stephen Breyer in dissent were fellow liberals John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor.

Schoolhouse Rock civics lesson

The next battle for Roberts and Kagan came in 2020. That case, Seila Law v Consumer Financial Protection Bureau, tested the leadership of the CFPB at a time when the first Trump administration was trying to reduce federal regulatory power. CFPB was led by a single director who could only be removed “for cause,” generally considered some misconduct or neglect of duty.

Roberts led the court to a 5-4 decision striking down the leadership structure as a violation of the constitutional separation of powers. He minimized the unanimously decided Humphrey’s Executor and elevated an earlier, 1926 decision, Myers v. United States, in which the court upheld the president’s power to remove a postmaster. Roberts referred to Myers as a “landmark” in both the 2020 and 2010 disputes.

Roberts wrote that the Myers decision reinforced the principle that the president’s executive power includes the power to supervise, and remove, those who exercise the president’s authority on his behalf. (He was joined by Thomas, Alito, Gorsuch and Kavanaugh, all of whom are still on the bench; Thomas, joined by Gorsuch, wrote a separate opinion saying they would have fully reversed Humphrey’s Executor.)

In her dissent for four liberals in 2020, Kagan criticized the Roberts majority for a rigid understanding of the separation-of-powers, particularly regarding an entity that had been created, in the wake of the 2008 financial crisis, to deal with deceptive practices and protect consumers.

“What does the Constitution say about the separation of powers – and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.)” Kagan wrote. “The majority offers the civics class version of separation of powers – call it the Schoolhouse Rock definition of the phrase. (‘Ring one, Executive. Two is Legislative, that’s Congress. Ring three, Judiciary.’)”

“The problem lies in treating the beginning as an ending too – in failing to recognize that the separation of powers is, by design, neither rigid nor complete,” she added.

Reading Roberts’ words back to him

As the Slaughter case moved through lower courts this year, judges sided with her based on the 1935 precedent. But when the Supreme Court intervened in September, it allowed Trump to fire her, at least while the litigation was pending.

The justices agreed to put the Trump appeal on an expedited schedule, as the court faced other appeals from the Trump administration on its firings at independent agencies. A separate case involving Trump’s effort to remove Federal Reserve Governor Lisa Cook is among those pending.

Lawyers for Slaughter argue in their written brief that independent agencies are “deeply ingrained in our Nation’s history and tradition, from the First Congress to the present day.” They said the administration lacks any justification to support overruling a line of precedent “on which much of modern governance is based.”

“Overruling a century of precedent at this late date,” they write, “would profoundly destabilize institutions that are now inextricably intertwined with the fabric of American governance.”

On the other side, representing the Trump administration, US solicitor general D. John Sauer leans on statements from Chief Justice Roberts’ past opinions. “Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed,’” Sauer writes, adopting Roberts’ phrases from the 2020 Seila Law decision.

And Sauer makes equal use of Roberts’ far-reaching opinion from Trump v. US. “(T)he President’s ‘exclusive power of removal in executive agencies,’” Sauer writes, “ranks among his ‘conclusive and preclusive powers.’”

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