At America's 250th, President Trump has elevated important debates
This will give you an idea of the pace of change in the U.S. government. The president just won a major victory at the Supreme Court. That president is Franklin Delano Roosevelt.
FDR was right, the court ruled, when he insisted the president can fire the previous administration's appointees to powerful commissions in the executive branch of government if they disagree with his administration's priorities. Today's Supreme Court held that the 1935 Supreme Court was wrong when it said he can't.
The overturned case is Humphrey's Executor v. United States, so called because William Humphrey died during the dispute over his firing and the executor of his estate sued the government to collect his salary. Chief Justice John Roberts has now served as the executor of Humphrey's Executor. "If anything more is left of Humphrey's, the Court overrules it," Roberts wrote.
President Trump teed up this decision at the start of his second term by firing Rebecca Slaughter and Alvaro Bedoya, two Democrat-appointed commissioners serving on the Federal Trade Commission. That's the same position held by Humphrey, who was appointed by FDR's predecessor, Herbert Hoover.
The FTC is a massively powerful regulatory agency, making policy choices that determine the fate of businesses in the United States, and until last Wednesday, the people who ran it didn't answer to anybody.
In Trump v. Slaughter, the Supreme Court said that can't be right. The FTC, Roberts wrote, exercises the power to make rules that "carry the force of law," enforces its own rules and collects billions of dollars in civil penalties. Yet its powers belong not to the elected president or his appointees but to "five Commissioners, each of whom serves for seven years and may be removed by the President only ‘for inefficiency, neglect of duty, or malfeasance in office.' We hold that such protection from removal is contrary to the separation of powers enshrined in the Constitution."
FDR's victory took 91 years.
Another issue that President Trump teed up for Supreme Court review is birthright citizenship. Immediately after his second inauguration, Trump signed an executive order that said babies born in the United States to parents who are in the country temporarily or illegally are not automatically citizens.
Lawsuits followed, and on June 30, in the case known as Trump v. Barbara, the Supreme Court held 6-3, and in some ways 5-4, that they are U.S. citizens, regardless of the status of their parents.
"I am not sure that today's opinion will stand the test of time," wrote Justice Clarence Thomas at the conclusion of a dissenting opinion so brilliantly detailed and rich with historical sourcing that it makes Chief Justice Roberts' majority opinion look like the winner of a sixth-grade essay contest.
"This is one of the most important decisions in the history of the Court, and in my judgment, the Court has made a serious mistake," wrote Justice Samuel Alito in a separate dissenting opinion.
The question turns on the meaning of the Citizenship Clause in the Fourteenth Amendment, the historical context of the Fourteenth Amendment, and the application of its principles to new circumstances. The Supreme Court's decision was a close call that could have gone either way. Justice Brett Kavanaugh wrote that Congress has the power to make exceptions to birthright citizenship and has done so in the past. Congress could choose to create an exception that excludes from automatic citizenship the babies born to people temporarily or illegally in the United States. For example, "birth tourism" can be ended without a constitutional amendment.
Because Congress has not created those exceptions, Kavanaugh wrote that he agreed with the majority opinion. However, he flatly stated that "the Executive Order does not violate the Fourteenth Amendment." That distinction means the decision in Trump v. Barbara was 5-4 that the Fourteenth Amendment guarantees birthright citizenship to the children of undocumented immigrants and temporary visitors.
So if you check back in 91 years, or probably much sooner, Trump may have an FDR-style late victory on the birthright citizenship issue.
Another important opinion from the Court in the final day of the term involved the definition of "Election Day." In Watson v. Republican National Committee, the justices considered a challenge to a Mississippi law that requires the counting of ballots received up to five days after the election if postmarked on or before Election Day. The RNC contended that Mississippi's statute violated federal law.
A majority of the Supreme Court didn't think so. "The sole question before us is whether counting ballots postmarked by election day, but received up to five days later, violates the federal election-day statutes," wrote Justice Amy Coney Barrett. "The federal election-day statutes do not preempt Mississippi's law."
Here again, the decision may not have settled the issue for long. "We do not consider the scope of Congress's authority to regulate federal elections," Barrett wrote.
President Trump is pressing the Senate to pass the SAVE America Act, and if that happens, federal law will require all states to verify the citizenship of individuals registering to vote, along with a requirement for photo identification to vote in federal elections. The law would also limit the use of mail ballots to people who genuinely can't get to the polls.
If signed into law, the SAVE America Act is virtually certain to be challenged by states including California, where voter ID laws have been made illegal, registered voters attest to their citizenship on the honor system, mail ballots are sent to every voter and anyone can return them.
On America's 250th, the president has elevated some important debates about the mechanics of running a self-governing republic. He has certainly delivered on his promise of cage fights and fireworks.
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