Newsweek: Ex-Clarence Thomas clerk sounds alarm on expected Supreme Court move

A former clerk to Justice Clarence Thomas has issued a detailed warning about the Supreme Court‘s accelerating push to expand presidential power over federal agencies, coinciding with active cases that could overturn decades of precedent.

Caleb Nelson, a distinguished professor at the University of Virginia School of Law, published an analysis in September through NYU Law’s Democracy Project titled “Special Feature: Must Administrative Officers Serve at the President’s Pleasure?”, challenging the Court’s interpretation of presidential removal authority.

The alarm bells come as the Court prepares to hear arguments on whether President Donald Trump can fire officials at independent agencies without cause, with cases involving Federal Trade Commission (FTC) and Federal Reserve officials already pending.

Newsweek reached out to the Supreme Court’s public information office via online form and the White House via email on Monday for comment.

Why It Matters

The Supreme Court’s trajectory on removal power could fundamentally restructure American government, affecting everything from consumer protection to monetary policy.

The stakes extend beyond theoretical constitutional interpretation. The Court has already allowed the Trump administration to proceed with mass immigration program terminations and other major policy changes through emergency orders while litigation continues, demonstrating the immediate real-world impact of these judicial decisions.

If the Court expands presidential removal authority, it would enable the White House to rapidly replace independent regulators and carry out major policy changes before courts can review them, with fewer practical checks on abrupt shifts in direction.

At stake is whether independent agencies like the FTC and Federal Reserve can maintain insulation from partisan political control.

What To Know

The constitutional dispute centers on a seemingly simple question with complex implications: who can fire federal officials, and under what circumstances?

Nelson explains that while Article II vests executive power in the president, the Constitution remains largely silent on removal except for impeachment. This silence has become a battleground for competing interpretations.

Chief Justice John Roberts has led the charge toward expanded presidential power, writing in Seila Law v. CFPB (2020) that presidential removal authority “follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States.” The Court appears poised to extend this reasoning further, potentially overturning Humphrey’s Executor (1935), which has protected independent agency officials from at-will removal for nearly ninety years.

Nelson systematically challenges each pillar of Roberts’s argument.

He disputes that Article II’s “executive Power” includes the English monarch’s historical removal powers, citing recent scholarship distinguishing between executive authority and royal prerogative. He also contests the historical narrative about the First Congress, arguing that careful examination of 1789 debates reveals no consensus on presidential removal power, despite current Court assertions.

The practical implications are already visible. Georgetown law professor Steve Vladeck wrote on Substack earlier this month that the Trump administration sought emergency action from the Court 19 times in its first 20 weeks—matching the former President Joe Biden administration’s total over four years—and succeeded in 10 of 12 decided applications.

Recent immigration cases demonstrate this pattern: the Court allowed termination of parole programs for hundreds of thousands of migrants and permitted deportations to proceed despite lower court injunctions requiring notice and opportunity to seek protection.

What People Are Saying

Professor Caleb Nelson, in his analysis: “If most of what the federal government currently does on a daily basis is ‘executive,’ and if the President must have full control over each and every exercise of ‘executive’ power by the federal government (including an unlimitable ability to remove all or almost all executive officers for reasons good or bad), then the President has an enormous amount of power—more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”

He added: “I am an originalist, and if the original meaning of the Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes. But both the text and the history of Article II are far more equivocal than the current Court has been suggesting. In the face of such ambiguities, I hope that the Justices will not act as if their hands are tied and they cannot consider any consequences of the interpretations that they choose.”

Judge Clay D. Land, Middle District of Georgia, in a May decision: “Allowing constitutional rights to be dependent upon the grace of the executive branch would be a dereliction of duty by this third and independent branch of government and would be against the public interest.”

Justice Elena Kagan, at a judicial conference in California in July: “Courts are supposed to explain things. Offering reasons for judicial decisions is an essential protection against arbitrary power—to ensure that like cases are being treated alike.”

What Happens Next

The Supreme Court will hear oral arguments in November regarding presidential authority to impose tariffs under emergency powers, while removal cases involving FTC Commissioner Rebecca Slaughter and Federal Reserve Board member Lisa Cook await resolution.

The Court’s decisions could eliminate statutory protections for independent agency officials, potentially affecting thousands of positions across agencies overseeing financial markets, consumer protection, communications, and trade.

https://www.newsweek.com/ex-clarence-thomas-clerk-sounds-alarm-expected-supreme-court-move-10873224

MSNBC: Supreme Court issues ruling on Trump’s power to fire FTC commissioner without cause

Chief Justice John Roberts had previously blocked the reinstatement of the agency’s lone Democratic commissioner whom Trump sought to fire.

The Supreme Court has backed President Donald Trump’s power to fire the lone Democrat on the Federal Trade Commission without cause, agreeing at the same time to consider overturning a longstanding precedent that has protected independent agencies.

The high court’s three Democratic appointees dissented from the decision Monday to lift a lower court order that sided with the commissioner, Rebecca Slaughter, while litigation proceeds. The high court’s order said the justices will hear oral argument in the case during its December argument session.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” Justice Elena Kagan wrote for the three Democratic appointees, calling out how the Republican-appointed majority has helped Trump in this and other cases in his second term. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,” she wrote.

Monday’s order follows Chief Justice John Roberts’ decision on Sept. 8 to temporarily halt Slaughter’s reinstatement while the full Supreme Court considered whether she should be reinstated while litigation over her firing continued. That word from the full court came Monday, as the majority sided with Trump ahead of the December hearing and, in doing so, signaled that it will side with him in its final decision. The court, whose next term starts in early October, typically issues the term’s decisions by early July, meaning a final decision in the Slaughter case should come by then next year.

In July, a federal judge ruled that Trump’s attempt to fire Slaughter was unlawful. A divided appellate panel refused to lift the judge’s order on Sept. 2, citing the 1935 Humphrey’s Executor precedent that endorsed for-cause removal protections. The Roberts Court has weakened that precedent, and the Trump administration has targeted it. The precedent arose in the context of the FTC specifically, raising the possibility that the justices could overturn it outright in Slaughter’s case.

The Supreme Court’s order Monday said the justices want the parties to brief and argue these two questions, specifically naming the 90-year-old precedent:

(1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

Dissenting from the appellate panel’s Sept. 2 refusal to lift U.S. District Judge Loren AliKhan’s order, Trump appointee Neomi Rao acknowledged the Humphrey’s precedent but noted that the Supreme Court has been siding with Trump on his firing powers lately. In any event, the district judge was powerless to order Slaughter’s reinstatement, Rao wrote.

The administration cited Rao’s dissent in seeking to lift AliKhan’s order, casting the case as the latest in Trump’s second term to warrant relief from lower court overreach. “In this case, the lower courts have once again ordered the reinstatement of a high-level officer wielding substantial executive authority whom the President has determined should not exercise any executive power, let alone significant rulemaking and enforcement powers,” U.S. Solicitor General John Sauer wrote to the justices on Sept. 4. Sauer asked the justices to lift AliKhan’s order immediately.

Opposing even a temporary pause in the judge’s order (which Roberts granted Sept. 8), Slaughter’s lawyers said the government wouldn’t be harmed by her continuing to serve while the administration’s application to the justices is pending. They sought to distinguish recent cases in which the court sided with the administration by noting that Slaughter “is the sole Democratic member on a Commission with a three-Republican majority,” so her presence on the FTC wouldn’t result in any meaningful action opposed by the majority.

On Sept. 15, her lawyers further wrote that Congress hadn’t granted Trump the broad power he claims and that if he “is to be given new powers Congress has expressly and repeatedly refused to give him, that decision should come from the people’s elected representatives.” They further argued that “[a]t a minimum, any such far-reaching decision to reverse a considered congressional policy judgment should not be made on the emergency docket,” referring to the court’s rulings made without full briefing, hearing or explanation, which have frequently helped Trump in his second term. It’s the majority’s use of the docket in this way that Kagan and the Democratic appointees called out on Monday.

https://www.msnbc.com/deadline-white-house/deadline-legal-blog/supreme-court-ftc-commissioner-fire-cause-trump-rcna231388

Newsweek: Elena Kagan warns Supreme Court “overriding” Congress to give Trump a win

ustice Elena Kagan warned Monday that the Supreme Court is “overriding” Congress to hand President Donald Trump sweeping new powers over independent agencies.

Her dissent came after the court, in a 6-3 decision, allowed Trump to fire Federal Trade Commission member Rebecca Slaughter while the justices consider whether to overturn a 90-year-old precedent limiting presidential removals.

The conservative majority offered no explanation, as is typical on its emergency docket, but signaled a willingness to revisit the landmark 1935 Humphrey’s Executor ruling.

Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, said the court has repeatedly cleared firings that Congress explicitly prohibited, thereby shifting control of key regulatory agencies into the president’s hands.

“Congress, as everyone agrees, prohibited each of those presidential removals,” Kagan wrote. “Yet the majority, stay order by stay order, has handed full control of all those agencies to the President.”

Newsweek reached out to the White House for comment via email on Monday afternoon.

Why It Matters

The U.S. Supreme Court has repeatedly faced decisions regarding Trump’s use of his powers since his return to the White House in January. Cases have included attempts to fire large swaths of the federal government workforce, as well as changes to immigration policy and cuts to emergency relief funding, with arguments that it is Congress, not the president, that holds such powers.

What To Know

Monday’s decision is the latest high-profile firing the court has allowed in recent months, signaling the conservative majority is poised to overturn or narrow a 1935 Supreme Court decision that found commissioners can only be removed for misconduct or neglect of duty.

The justices are expected to hear arguments in December over whether to overturn a 90-year-old ruling known as Humphrey’s Executor.

In that case, the court sided with another FTC commissioner who had been fired by Franklin D. Roosevelt as the president worked to implement the New Deal. The justices unanimously found that commissioners can be removed only for misconduct or neglect of duty.

That 1935 decision ushered in an era of powerful independent federal agencies charged with regulating labor relations, employment discrimination and public airwaves. However, it has long rankled conservative legal theorists, who argue that such agencies should answer to the president.

The Justice Department argues that Trump can fire board members for any reason as he seeks to implement his agenda. However, Slaughter’s attorneys argue that regulatory decisions will be influenced more by politics than by the expertise of board members if the president can fire congressionally confirmed board members at will.

“If the President is to be given new powers Congress has expressly and repeatedly refused to give him, that decision should come from the people’s elected representatives,” they argued.

The court will hear arguments unusually early in the process, before the case has fully worked its way through lower courts.

The court rejected a push from two other board members of independent agencies who had asked the justices to also hear their cases if they took up the Slaughter case: Gwynne Wilcox, of the National Labor Relations Board, and Cathy Harris, of the Merit Systems Protection Board.

The FTC is a regulator enforcing consumer protection measures and antitrust legislation. The NLRB investigates unfair labor practices and oversees union elections, while the MSPB reviews disputes from federal workers.

What People Are Saying

Solicitor General D. John Sauer wrote: “The President and the government suffer irreparable harm when courts transfer even some of that executive power to officers beyond the President’s control.”

Supreme Court Justice Elena Kagan, in her dissent: “The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him.”

Representative Rosa DeLauro, a Connecticut Democrat, in an amicus brief filed in Trump v. Slaughter“Because the President’s limited authority to temporarily withhold funds proposed for rescission under the ICA does not permit the President to withhold those funds through their date of expiration without action from Congress, the district court’s injunction imposes no greater burden on the government than already exists under that law. The stakes for Congress and the public, however, are high. The fiscal year ends on September 30, less than three weeks from today.”

What Happens Next

The court has already allowed the president to fire all three board members for now. The court has suggested, however, that the president’s power to fire may have limits at the Federal Reserve, a prospect that is expected to be tested in the case of fired Fed Governor Lisa Cook.

https://www.newsweek.com/kagan-supreme-court-congress-trump-win-ftc-2133934

Reuters: Trump administration drops defense of ban on employee ‘noncompete’ agreements

  • Rule barred agreements commonly signed by workers
  • Judicial rulings had blocked the Biden-era rule

 President Donald Trump‘s administration abandoned on Friday the U.S. government’s legal defense of a rule adopted under former President Joe Biden that had banned agreements commonly signed by workers not to join rivals of their employers or launch competing businesses.

The U.S. Justice Department filed motions in federal appeals courts in New Orleans and Atlanta to dismiss separate appeals of rulings by two judges that struck down the 2024 U.S. Federal Trade Commission rule concerning “noncompete” agreements. Republicans and business groups have criticized the rule.

The move was expected after FTC Chairman Andrew Ferguson, who was appointed to the post by Trump and had previously criticized the rule, said in February that the agency was reviewing it. The appeals involve legal challenges to the rule by a marketing firm and a real estate developer, as well as the U.S. Chamber of Commerce and other business groups.

Dropping the appeals means the courts will not have a chance to address the novel question of whether the commission, which enforces federal antitrust laws, can adopt sweeping regulations such as its nationwide ban on “noncompete” agreements.

More than 20% of U.S. workers have signed noncompete agreements, according to the FTC. The agency, in adopting the rule, had said the agreements limit worker mobility and suppress wages and competition for labor.

Ferguson and other Republicans on the commission have said the FTC has limited rulemaking powers and cannot adopt blanket bans on what it views as anticompetitive conduct.

During Trump’s first term as president, his administration had argued in court that while specific provisions of noncompetes can be unlawful, the agreements themselves were not.

The FTC on Thursday announced its first legal action of Trump’s second term related to noncompete agreements, a settlement barring the largest U.S. pet cremation business from enforcing these agreements with 1,800 workers.

The agency in that case, opens new tab said that the company’s broad agreements, signed even by low-level employees, unlawfully suppressed competitors’ entry into the pet cremation market.

Regressive! Non-compete agreements often unfairly make it all but impossible for many people to find jobs.

https://www.reuters.com/legal/litigation/trump-administration-drops-defense-ban-employee-noncompete-agreements-2025-09-06

Explicame: Trump policies forced to pass thanks to Supreme Court

A recent series of Supreme Court decisions has significantly reshaped the balance of power in the U.S. government, drawing attention from legal scholars.

The U.S. Supreme Court has increasingly played a pivotal role in enabling the Trump administration’s policy objectives, marking a pronounced shift in the dynamics between the executive and judicial branches. Through a series of recent rulings, the Court has upheld key Trump-era administrative actions, reinforcing executive authority and raising concerns about the long-term implications for constitutional checks and balances.

Over just six months in office, the Trump administration’s Department of Justice filed more than 20 emergency requests with the Supreme Court, surpassing the 19 total emergency filings submitted during the entirety of Joe Biden’s presidency. This aggressive use of the emergency docket has yielded significant policy victories and underlined a broader transformation in how executive power is being exercised, and supported, by the judiciary.

Among the cases that the Court has ruled in favor of the Trump administration are Trump v. CASA, Trump v. AFGE, McMahon v. New York, and high-profile dismissals involving the Consumer Product Safety Commission and the Federal Trade Commission. These rulings have allowed the administration to fast-track deportations, eliminate certain migrant protections, freeze federal education grants, and access Social Security data, among other sweeping policy shifts.

In addition to these substantive decisions, the Supreme Court has moved to limit the ability of lower-court judges to issue nationwide injunctions that could block presidential actions. Critics argue this undermines a core function of judicial oversight. Justice Ketanji Brown Jackson, dissenting in one of the related cases, warned that curtailing universal injunctions could “threaten the rule of law.”

Chief Justice John Roberts has publicly emphasized the importance of judicial independence, rejecting the notion that disagreement with judicial decisions justifies impeachment. However, his leadership has also reflected a broader willingness to defer to executive authority in cases with broad constitutional implications.

Legal observers point to a trend: vague rulings, expedited decisions on the shadow docket, and a lack of clear legal reasoning have made it harder to track the boundaries of presidential power. Critics warn that this ambiguity may create the perception that the president can unilaterally restructure federal agencies, an alarming precedent for those who view judicial review as a safeguard against executive overreach.

As the Supreme Court continues to weigh in on high-stakes policy issues, the alignment between the bench and the executive branch under Trump’s leadership has redefined the limits of presidential authority. The consequences of this realignment are likely to shape American governance well beyond the current administration.

https://www.msn.com/en-us/news/politics/trump-policies-forced-to-pass-thanks-to-supreme-court/ar-AA1JNnKh

Raw Story: ‘Lightning fast’: House lawmakers get a stern directive from Trump

President Donald Trump took to his Truth Social platform on Wednesday to demand that the House immediately act on a new package of cryptocurrency laws passed by the Senate.

“The Senate just passed an incredible Bill that is going to make America the UNDISPUTED Leader in Digital Assets — Nobody will do it better, it is pure GENIUS!” wrote Trump. “Digital Assets are the future, and our Nation is going to own it. We are talking about MASSIVE Investment, and Big Innovation. The House will hopefully move LIGHTNING FAST, and pass a ‘clean’ GENIUS Act.”

“Get it to my desk, ASAP — NO DELAYS, NO ADD ONS,” Trump added. “This is American Brilliance at its best, and we are going to show the World how to WIN with Digital Assets like never before!”

The GENIUS Act is the first legislation aimed at regulating so-called stablecoins, a form of cryptocurrency intended to remain stable in price as opposed to typical coins that can fluctuate wildly in value.

However, its passage in the Senate was fraught, as Democrats initially blocked the bill over a variety of concerns, including a lack of consumer protections, the potential domination of the space by tech companies, and the fact that the bill had a loophole that could be exploited by the Trump family to continue profiting off crypto ventures personally, a massive potential conflict of interest.

“A loophole that could be exploited by the Trump family”? A loophole for our Grifter-in-Chief? I’m shocked! Not!

Critics of the bill still fear it would be a giveaway to Trump ….

The king wants his due!

https://www.rawstory.com/trump-genius-act

The Nation: The Supreme Court Gifts Trump Even More Power

The court seems ready to give the president extraordinary power over what had been independent worker- and consumer-protection agencies.

The court seems ready to give the president extraordinary power over what had been independent worker- and consumer-protection agencies.

Here’s a troubling news alert for everyone who cares about workers and consumers being protected from illegal, exploitative, and dangerous business practices: The Supreme Court appears ready to give President Donald Trump extraordinary power over what for nearly a century have been independent expert federal worker and consumer protection agencies insulated from White House interference.

The court showed its hand in Wilcox v. Trump—the case involving Trump’s unprecedented effort to fire Gwynne Wilcox—a Senate-confirmed member of the National Labor Relations Board (NLRB) and the first Black woman to ever serve as a member of the NLRB.

Members of independent agencies like the NLRB, the Federal Trade Commission (FTC) and the Consumer Product Safety Commission (CPSC), are nominated by the president and confirmed by the US Senate for defined terms. They are protected by law against being removed from office except where there has been wrongdoing and only after notice and a hearing. The Supreme Court has recognized and respected these “for cause” removal protections for 90 years.

That is, until now. Upon taking office for his second term, Trump decided that he has the power to unilaterally remove members of independent boards and commissions whenever and for whatever reason he wants. The list of casualties is long—in addition to Wilcox, he has fired members of the Equal Employment Opportunity Commission, the FTC, the CPSC, the Merit Systems Protection Board, the Federal Labor Relations Authority, and more. And by firing these officials, Trump has left these consumer- and worker-protection agencies without a quorum to act and hold corporations accountable.

The court’s order is going to embolden a president who has already shown himself willing to push or violate the boundaries of his power. Now that the Supreme Court has nodded at his power to fire members of independent boards and commissions, he will undoubtably continue to do so, even before the Supreme Court definitively rules on the merits of the question in its next term.

https://www.thenation.com/article/politics/wilcox-trump-federal-agencies

MSNBC: Trump admin regulators launch investigation into Media Matters, adding to pattern

If it seems as if there have been a lot of new federal investigations into Democrats and their allies lately, it’s not your imagination.

But it’s important to remember that many of the White House’s political antagonists are, in fact, facing the kind of investigations that Trump has in mind. The New York Times reported:

The Federal Trade Commission on Wednesday opened an investigation into Media Matters, a liberal advocacy organization that has published research on hateful and antisemitic content on X, according to two people familiar with the inquiry. The regulator said in a letter sent to the organization that it was investigating the group, which is aligned with Democrats, over whether it illegally colluded with advertisers, according to the people.

The public has learned in recent weeks that the administration — led by a president whose second-term “revenge tour” has been unsubtle — is also investigating and/or prosecuting a variety of Democratic officials and candidates, including Rep. LaMonica McIver of New Jersey, former New York Gov. Andrew Cuomo, New York Attorney General Letitia James and New Jersey Gov. Phil Murphy.

This dovetails with the president directing the Justice Department to go after Christopher Krebs, who led the Cybersecurity and Infrastructure Security Agency; which came on the heels of Trump pressing the Department of Homeland Security to investigate Miles Taylor, a former high-ranking DHS official. The president did this not because there’s evidence of Krebs or Taylor having done anything wrong, but because they defied him several years ago. They went on his enemies list, and now he’s exacting revenge.

Around the same time, Trump also directed the Justice Department to investigate ActBlue, the Democratic Party’s most important fundraising platform.

And did I mention the investigation into former FBI director James Comey? Because that’s underway, too.

Trump and his team are also going after law firmsuniversities and news organizations they consider political foes of the White House.

What’s more, given Ed Martin’s new responsibilities at the Justice Department, this overtly and abusive partisan pattern is likely to intensify.

So Trump hates everybody?

Axios recently noted, “In the final days of the 2024 campaign, Axios identified a list of perceived adversaries who fit what Trump ominously described as ‘the enemies from within.’ As president, he has taken steps to retaliate against virtually all of them.” That was two months ago. The problem is vastly worse now, and there’s no reason to believe conditions will improve anytime soon.

https://www.msnbc.com/rachel-maddow-show/maddowblog/trump-admin-regulators-launch-investigation-media-matters-adding-patte-rcna208780

The Hill: Trump administration removes Democratic members of credit union watchdog

The Trump administration has fired two Democratic board members from the National Credit Union Administration (NCUA), the officials said Wednesday.

Todd Harper, one Democrat on the board, shared the news of his removal in a post on LinkedIn and said the firing was “just plain wrong.”

“The decision of the White House to fire me before the completion of my term is wrong. It violates the bipartisan statutory framework adopted by Congress to protect credit union members and their deposits,” Harper said in his statement.

Harper argued the firings were an attack on the NCUA and undermines the organization’s independence and work. The NCUA regulates credit unions and protects credit members.

“If a President can fire an NCUA Board member at any time, how will we maintain public trust in our nation’s financial services regulatory system?” he questioned.

The other Democrat removed was Tanya Otsuka. Their departures leave just one member of the board left, Republican Chair Kyle Hauptman, Reuters reported.

In a separate statement, reported by Reuters, Otsuka said she was informed about her immediate termination in an email Tuesday evening and said it was “yet another attempt to undermine the rule of law and blatantly ignore Congress and our democratic values.”

https://www.msn.com/en-us/news/politics/trump-administration-removes-democratic-members-of-credit-union-watchdog/ar-AA1D3C9v