A federal judge instructed the lawyers before her to walk through the history of the National Labor Relations Board and the long effort to degrade agency independence, providing a bird’s-eye primer for the public on President Donald Trump’s attempt to put the entire executive branch under his direct control.
“I recognize that for both sides, this court is merely a speed bump for you all to get to the Supreme Court,” U.S. District Judge Beryl Howell, an Obama appointee in Washington D.C., said Wednesday, adding: “The issue at stake is of extreme importance, given that the NLRB is far from the only multi-member, independent, executive branch agency with statutory removal protections. That’s why I’ve chosen to have this public hearing.”
The case stems from the unlawful firing without cause of NLRB member Gwynne Wilcox, who quickly filed a lawsuit in federal court. Her case, running parallel to other challenges of plainly illegal firings of members of independent agencies, is ultimately bound for the Supreme Court, as the Trump administration aims to get the justices to overturn current precedent that protects her from at-will firing.
The Trump DOJ is candid about that posture.
Judge Howell ticked through fundamental facts of the case:
- Both parties agree that Wilcox was not removed for malfeasance or neglect, the causes Congress permits her to be fired for (“correct,” said DOJ attorney Harry Graver);
- Wilcox was not given the notice or hearing the law demands (“correct”);
- The Justice Department does not argue that her removal was inconsistent with existing law (“we’re not relying on the statutory standard,” Graver agreed);
- Humphrey’s Executor, the Supreme Court precedent establishing that Congress can put limits on presidential removal powers for agencies like the NLRB, is still good law that binds the court (“100 percent”).
While Howell concluded the hearing without issuing her ruling, the Justice Department expects her to conclude that Wilcox’s firing is unlawful, as another federal judge did Tuesday in a similar case. Howell is just, as she put it, a “speed bump” en route to the Supreme Court, where the Trump DOJ is hoping to see a maximal version of the unitary executive theory blessed by the conservative majority, stripping independent agencies of their independence.
To underscore how radical this conception of presidential power is, Howell highlighted an amicus brief filed in support of Trump by the state of Tennessee, which pointed out that the English king could fire executive officers at will.
“Is the tradition of the British king with unfettered removal power — not only to remove somebody working in the government but probably to slice off his head — is that the model?” Howell asked incredulously. “Maybe Tennessee is recommending it for us Americans, but is that model that we should be turning to?”
She pressed the DOJ’s Graver on a Trump executive order published in February, which purported to put every agency under Trump’s direct command except for the Federal Reserve’s monetary policy powers. Experts told TPM that the best hope for independent agencies’ survival at the Supreme Court is the conservative justices’ balking at the instability that would follow a partisan takeover of the Fed, which is structured similarly to these other multi-member agencies.
“That means the Federal Reserve Board,” Howell said after asking which agencies Graver considers vulnerable to at-will firings. “That is the purest, most extreme form of the unitary theory of the presidency I’ve ever heard: Anybody in the executive branch is subject to removal by the President.”
She pondered what Congress could do under a maximal expression of the unitary executive theory, if it wanted to establish an agency protected from political whims. Would it have to stash it in the judicial or legislative branches, where it’d be free from the president’s reach?
She walked through the history of the theory, observing that even pro-presidential-power figures like William Howard Taft, himself a president-turned-Supreme Court chief justice, allowed for limits on the removal power.
“It’s no longer theoretical for the academy,” she said of the maximal vision of presidential power, “it’s here for us on how we’re gonna be governed.”
Spoils system, here we come.
In politics and government, a spoils system (also known as a patronage system) is a practice in which a political party, after winning an election, gives government jobs to its supporters, friends (cronyism), and relatives (nepotism) as a reward for working toward victory, and as an incentive to keep working for the party. It contrasts with a merit system, where offices are awarded or promoted on the basis of some measure of merit, independent of political activity.
The term was used particularly in politics of the United States, where the federal government operated on a spoils system until the Pendleton Act was passed in 1883 due to a civil service reform movement. Thereafter the spoils system was largely replaced by nonpartisan merit at the federal level of the United States.
The term was derived from the phrase “to the victor belong the spoils” by New York Senator William L. Marcy,[1][2] referring to the victory of Andrew Jackson in the election of 1828, with the term “spoils” meaning goods or benefits taken from the loser in a competition, election or military victory.[3]
Similar spoils systems are common in other nations that traditionally have been based on tribal organization or other kinship groups and localism in general.
So Republican DEI.
Federal Judge Poised To Block NLRB Firing Bristles At ‘Extreme’ Attempt To Expand Trump’s Power
… … … … …
"Bristles*?!?
Ohhh myyy that’s not good. She might do what donnie doesn’t want then…
She won’t, the subprime court will (though of course with the carefully worded carve out that only GQP presidents can have the power of a king)
Getting paid by the Fed while black.
These ignorant racist shitbags are epidemic.