Turley: Trump 2.0 Getting Closer To The SCOTUS Decision They Want

Jonathan Turley has finally written at some length on the lawfare being waged against Trump’s campaign to restore America’s constitutional order of a separation of powers, with a strong executive. If successful, Trump’s MAGA movement could bring an end to the New Deal Third Republic and inaugurate a Fourth American Republic. To accomplish this, Trump is seeking definitive SCOTUS decisions that will enshrine this restoration of constitutional order. Because the SCOTUS only decides actual cases or controversies—it doesn’t issue declaratory opinions of policy—Trump 2.0 needs to provoke such cases or controversies that the SCOTUS can decide. That’s exactly one of the goals behind the flood of Executive Orders, and that tactic is succeeding:

Spoiling for a Fight: Why the Administration’s Loss Last Night May Be Not Just Expected But Welcomed

Prof Turley has read the opinion in the Dellinger case and addresses it in the closely reasoned article at the link. I’ll try to outline it to provide the big picture.

Basically, Turley states that the judge in the case—Amy Berman Jackson—is perfectly correct in her understanding of the statute that purports to govern the factual situation—Trump’s firing of Dellinger ‘just because.’ However, Jackson ignores other precedent, relying exclusively on the old Humphrey's Executor case from 1935. I won’t go into Jackson’s reasoning, which is somewhat technical. Turley goes into that, but then adds:

Judge Jackson has a good-faith reliance on her narrow reading of existing precedent. Moreover, she is right that this is not in compliance with the statute. If the statute holds (and it might), the Administration will have to start the process again.

However, the precedent is far from conclusive and brushes over some striking conflicts with prior rulings of the Supreme Court. Jackson insisted that a contrary ruling would undermine the very point of the Special Counsel office: “its independence,” However, that is the very point that has irked both Democratic and Republican presidents for years.

That last point—that both Dem and GOPer presidents have found themselves at odds with this view, which Jackson seeks to perpetuate. In fact, Turley then goes on to specifically cite Jimmy Carter and Zhou in that regard. We need to get a bit technical to understand the Roberts incrementalism in these cases.

The Civil Service Reform Act provided four agency heads “tenure protection”—that is, the heads of those four agencies, by the terms of the law, cannot be fired ‘just because’. The president, said Congress, must provide a reason—”inefficiency, neglect of duty, or malfeasance in office.” The Roberts Court has taken on two such cases—in 2020 and in 2021—and in both has ruled that Executive Article Two powers were infringed upon. But the decisions were narrowly framed, rather than simply overturning the offending provisions of the law. That’s the Roberts incrementalism—decide cases on the narrowest grounds possible—if possible. What we can say is that there’s a definite trend at play here.

Strikingly, Zhou’s DoJ adopted the Roberts Court reasoning and extended it to a third of the four agencies:

Given these cases, lower courts clearly got the message [from the Roberts Court’s two decisions] – a message amplified by President Joe Biden who appointed Dellinger. On the third “independent” position, the Commissioner of Social Security, Biden’s Office of Legal Counsel declared that “the best reading of Collins and Seila Law” is that “the President need not heed the Commissioner’s statutory tenure protection.” Two circuits (the Ninth and Eleventh) have ruled consistently with that interpretation in favor of executive authority to remove such officers.

In other words, there is now considerable Executive Branch as well as Judicial Branch authority seeming to adopt and extend the Roberts reasoning—DoJ’s Office of Legal Counsel, plus two Circuits. That would seem to constitute real momentum in favor of a broader ruling this time around. As Shipwreckedcrew has noted, it’s always possible that Roberts could opt for another very narrow decision, but why wouldn’t Roberts go with the bipartisan flow that he started?

Turley believes Trump 2.0 sees a possible opportunity for that broader decision, and has decided to aggressively pursue it:

Ultimately, Dellinger can be removed even if this decision stands. The Trump Administration could have easily cited a basis like inefficiency or neglect. While I know of no such allegations against Dellinger, the Administration may believe that it has a basis for such allegations. The law is vague on how or whether such an allegation can be contested.

The question is why it decided not to do so. ... However, it may also reflect a desire for some in the Administration to challenge lingering case law limiting executive powers. In other words, they seem to be spoiling for a fight.

[Discussion of Humphrey’s Executor]

What may be overlooked in the filings of the [Trump] Administration before the Supreme Court in the Dellinger case was this line in a footnote: “Humphrey’s Executor appears to have misapprehended the powers of “the New Deal-era [Federal Trade Commission]” and misclassified those powers as primarily legislative and judicial.” It went on to suggest that the case is not only wrongly decided but that the Justice Department “intends to urge this Court to overrule that decision.”

Described by the Court as “the outer-most constitutional limits of permissible congressional restrictions on the President’s removal power,” the Trump Administration appears set to try to redraw that constitutional map.

That is why Jackson’s opinion may not only be expected but welcomed by the Trump Administration. It is hunting for bigger game than Dellinger and Judge Jackson just gave it a clear shot for the Supreme Court.

The Progs have to be conflicted at this point. They must understand the trajectory of the Roberts Court is against them, and that by challenging Trump 2.0 they’re opening the door to sweeping decisions that could totally restore constitutionalism to America. That would be the very antithesis of everything they stand for. This looks like a desperate throw of the dice, hoping against hope that Roberts caves—despite all precedent to the contrary.