The Supreme Court Is Now Asking Judges to Do the Impossible

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily.

The Supreme Court expanded Donald Trump's power yet again on Wednesday,granting him the authority to fire Democratic members of the Consumer Product Safety Commission in direct violation of federal law. Over the liberal justices' dissent, the conservative supermajority greenlit the first step of Trump's systematic destruction of the agency—a plan that collides with many other federal statutes. The court's action imperils the CPSC's ability to ban products that may maim or kill consumers, including children, giving corporations free rein to flood the market with dangerous goods. And it hands the president even more leeway to restructure the federal government in ways that hurt regular people, reward the wealthy, and contradict Congress' direct commands.

What's perhaps most galling about Wednesday's decision, aside from the fact that it makes us all less safe, is SCOTUS's reprimand of lower courts that try to stop Trump's abuses of power. The majority scolded these courts for failing to interpret the smoke signals it has sent up on the shadow docket and, instead, daring to enforce existing precedent that limits executive authority. It seems the Republican-appointed justices are determined to radically rewrite the law—without admitting what they're doing or offering any explanation—while demanding that lower courts somehow read their minds and fall in line. These justices are increasingly embracing the Trump administration's scornful attitude toward any judge who stands in its way. Yet they do not appear to recognize that by undermining lower courts, they are putting their own independence at risk as well.

Congress created the CPSC in 1972 to protect consumers from products that could injure or kill them. It established the commission as a bipartisan agency whose five members were shielded from removal by the president. Lawmakers insisted upon this independence to ensure that it could operate “unfettered by political dictators, self-interested industry pressure or blind consumer zeal.” Over the past 53 years, it has fulfilled its duties, outlawing risky products and, when appropriate, penalizing the companies that sell them. A scan of recent recalls illustrates the breadth of the agency's work: In recent months, the CPSC has issued warnings about e-bike batteries that explode, aboveground pools that drown children, steamers that spew boiling water, loading ramps that break in use, baby gates that entrap and suffocate kids, and a bug zapper that shocks users. The list goes on and on, in part because the federal government imposes relatively few regulations before products go to market, relying instead on postsale recalls to remove hazardous goods.

Trump, however, does not like the CPSC, because it has the power to investigate and punish companies that sell these goods. And many of these companies' owners donate to the Republican Party. So the Trump administration seeks to abolish the agency and transfer remnants of its mission to Robert F. Kennedy Jr. When the CPSC's three Democratic members objected to this unlawful interference with their mission, the president fired them . They then sued, arguing (correctly) that federal law barred their removal. The lower courts agreed and reinstated all three members . Trump's Justice Department then asked the Supreme Court to fire them again, whichit did on Wednesday , by a 6–3 vote.

That decision came as no surprise: In May, the same majority allowed Trump to fire members of two other federal agencies who were protected against removal by law. Those terminations directly contradicted a 90-year-old Supreme Court precedent, Humphrey's Executor , that upheld removal protections at independent agencies. The majority, though, did not explain why it had ignored this precedent when it rubber-stamped Trump's illegal removals. That silence left the lower courts in a momentary: Should they follow binding precedent that renders the firings illegal? Or should they assume that SCOTUS has quietly overturned that precedent on the shadow docket? These courts stuck with the rulebook, which obliges them to follow precedent until it's formally overturned.

For that, they received a rebuke from the high court this week. In an unsigned opinion, the majority reprimanded the lower courts for failing to infer that May's shadow docket order was meant to “inform how a court should exercise its equitable discretion in like cases.” The district and appeals courts should have intuited that SCOTUS thinks the government faces unacceptable “harm” when “a removed officer” may “continue exercising” their “statutory duty.” They also should have realized that May's case does not “differ” from this one “in any relevant respect”—even though this case involves an entirely different agency that wields distinct powers. In short, these judges should have deciphered the Supreme Court's hints to divine that Humphrey's Executor is suddenly a dead letter after 90 years on the books.