Actions taken by the Trump administration that have been ruled illegal or unconstitutional by federal courts are presenting the Supreme Court with major separation-of-power decisions. The court has already issued 30 orders through its emergency docket, with the majority backing the Trump administration’s ability to continue its activities until the full case can be presented.
One idea guiding the Trump legal approach is the “unitary executive” theory, according to which the Constitution’s statement that “the executive power shall be vested in a President of the United States” means that all of the executive power is so vested.
This comes up with the firing of federal officials who are part of agencies established by the Congress, such as Rebecca Slaughter, a member of the Federal Trade Commission. Although Congress has legislated that FTC commissioners can only be fired for “inefficiency, neglect of duty, or malfeasance in office,” the Trump administration claims that he has the authority to fire for any reason.
The case is similar with President Donald Trump’s effort to remove Lisa Cook, a member of the Federal Reserve Board of Governors, whom Trump claims committed mortgage fraud prior to joining the Fed. Congress has legislated that members of the board can be fired only “for cause.” In this case, the Supreme Court declined to issue an emergency order, and Cook remains in her position according to a decision by a federal court. Two issues arise: whether Cook is being fired “for cause” and whether the Congress can restrict the president from firing for any reason.
