I just read Ketanji Brown Jackson’s dissent in yesterday’s Supreme Court decision (in the form of a brief unsigned order) in Trump v American Federation of Government Employees (AFGE) et.al. The first thing to note is that the dissents are almost always clearer than the majority decisions! The second thing is that we should all be reading the original information and not rely entirely on pundits.

In short, Jackson is saying that the court has given permission for Trump to dismantle Federal government agencies and activities, causing irreparable damage, while the lower courts are still deciding whether he is violating the law or the Constitution in doing so.

The case: Trump signed executive order 14210 and a parallel OMB regulation calling for the lawful trimming of staff in virtually all Federal agencies. When the subsequent plans for implementing this order were written, it became clear to many on the receiving end that Trump was not in fact ‘trimming’ but was actually eliminating the functions of many agencies by firing, in some cases, nearly all the existing staff in each agency. For example, the VA and the Social Security Administration are targets, which Trump promised not to touch, but whose missions would be severely compromised by the plans. 

The AFGE, the largest Federal employee union, then brought a suit against the President in order to stop the implementation of 14210 – at least until the courts could untangle the legality of its implementation. There is no disagreement that the President has the authority to make Federal agencies more efficient, so long as they continue to enact their Congressional charters. A Federal district court agreed with the AFGE, and ordered Trump to stop the action. Trump promptly appealed, and the Federal Appeals court also agreed with the AFGE. Trump then quickly filed an ’emergency appeal’ to the Supreme Court.

Yesterday the Supreme Court agreed with Trump, allowing the plans and activities to substantially reduce staffing in Federal agencies to proceed. The decision to side with Trump was based on the logic that the executive order and OMB regulations were lawful, despite the fact that this was not why the lower courts stopped the implementation of them. Justice Sotomayor wrote a short opinion agreeing with the majority, essentially saying that the Supreme Court was not allowed to consider whether the implementation of 14210 was legal, only whether the language of the executive order and the OMB directive were legal.

The Constitution: Our Constitution requires that Federal agencies, such as the FDA, the CDC, the VA, the Social Security department, and all the rest, be authorized and funded by Congress. The President does not invent these organizations, nor does he set policy for what they are required to do or not to do. The Constitution requires the President to “faithfully execute” the laws passed and funded by Congress, which in this case means to support Federal agencies in carrying out the work specified by law. To the extent that a US President undermines the work of a Federal agency as defined by the enabling Congressional law, that President is not “faithfully executing” as required by the Constitution, nor is he adhering to his oath of office.

You can read this for yourself, as our Constitution is not a state secret. Hooray! Here is a link to a transcription of the Constitution provided by the Heritage Foundation, a conservative right wing advocacy organization: https://tinyurl.com/yp9sbu38. The document is the same regardless of your personal partisan leaning.

The Courts. The role of the Supreme Court is not to rule on the facts of the cases that they review, but rather to discern whether the arguments and lower court conclusions conform to the Constitution and to the law. This may come as a surprise to many Americans! If you appeal a case to the Supreme Court, you may not argue, for example, that you were innocent. Being innocent of the crime is a matter of the facts of the case, not the law. You may only argue that the verdict was not the result of fair application of US laws and/or of the Constitution. It is the role of the lower courts to evaluate all the evidence and make a decision regarding the facts and how the law applies to those facts. In this case, the lower courts at both levels agreed that the facts supported the AFGE, not Trump, although a final verdict had not yet been reached.

The Decision. The Supreme Court majority decision was short: Trump wins, and gets to continue “reorganizing” Federal agencies, because the language of executive order 14210 was within the authority of the Executive. This does not represent a final ruling, but is rather an emergency response to an appeal, and therefore included no discussion or justification by the Court majority.

The Dissent. Jackson’s dissent argument was that the lower courts, after preliminary review, found the reorganization plans not only to be illegal but to already be well underway. Therefore, the lower courts were correct in halting them pending further review of the court. As the lower courts were still doing fact-finding and had not come a final conclusion or verdict, Jackson said that messing with the lower court’s preliminary decision was outside the scope of the Supreme Court’s authority. And, to allow implementation of the likely illegal plans to proceed would cause irreparable damage to Federal agencies. Should the lower courts conclude, after review, that the plans were legal, then they could be resumed.

Allowing the plans to be implemented, according to the dissent, would essentially be agreeing with Trump about the facts, which is not the role of the Supreme Court. Here is my more down-to-earth example: Jimmy asks his Mom if it would be ok to beat up his little sister. Mom then says, “sure, go ahead and whack away until I can I talk to your Dad so we can decide. I’ll let you know this evening.”

Ms. Jackson went on at some length about the Constitution’s specific designation of Congress as the part of the Federal Government that enacts and funds the laws while the President is authorized to implement them. In the past, other Presidents have wanted to reorganize Federal agencies and have sought approval or have consulted with Congress about the nature and scope of such actions. There are many examples cited, most where Congress approves, and some where it did not. “While the President no doubt has the authority to manage the executive branch, our system does not allow the President to rewrite laws under the guise of that authority.”

I further quote Judge Jackson’s dissent: “As the Ninth Circuit concluded, the statutory shortfalls likely to result from implementation of this Executive Order will be immensely painful to the general public, and the plaintiffs, in the interim, causing harm that includes “proliferat[ing] food-borne disease,” perpetuating “hazardous environmental conditions,” “eviscerat[ing] disaster loan services for local businesses,” and “drastically reduc[ing] the provision of healthcare and other services to our nation’s veterans.” Preventing those kinds of calamities is just a small slice of the work that federal employees do to carry out Congress’s statutory mandates—work that the Executive Order immediately imperils if implemented.”

In summary. Everyone agrees that the President should take action where practical to make the Federal workforce more efficient and more effective. However, if the President fires all the people who are, say, issuing Social Security checks so that they stop going out, would this be considered within his authority to implement the Social Security Act more efficiently? The Supreme Court decision says it would be fine, while the Jackson dissent says it is not fine. You pick. I have stripped out all the legal mumbo-jumbo — and you’re welcome!

Don’t take my word for it- you can read the entire opinion for yourself: https://tinyurl.com/4vcavd9u.  If you come to a different conclusion after reading the original text, please let me know.