Supreme Court Justice addresses matter related to Robert Mueller and Donald Trump
On April 25, 2018, the Supreme Court of the United States heard oral arguments in a case, Donald J. Trump, President of the United States, et al., v. Hawaii, et al. (transcript can be found here) that addressed the travel ban and whether it passed muster. Trump’s Solicitor General, Noel Francisco, argued on behalf of the President and federal government. The arguments did not directly address Special Counsel Robert Mueller or the power of the president to terminate employees.
However, reading the transcript, there was an exchange or two that seemed to be peculiar and perhaps hints of the question that Francisco wanted addressed in the Lucia v. Securities and Exchange Commission case that was heard on Monday. In that matter, Francisco intervened in the case, seeking an expansive declaration by the Supreme Court regarding the president’s power to fire all “officers of the United States” who “exercise significant authority.” The Supreme Court rejected that request, but he briefed that issue and the Solicitor General appeared in court advocating that issue.
Today, in the travel ban hearings, Justice Sotomayor and General Francisco engaged in an exchange about the Lucia case:
JUSTICE SOTOMAYOR: General, today, can we go back to something that’s been bothering me here, which is— and it was argued in a case this week about the unitary executive theory, which basically says the President is at the head, I think – I’m summarizing in an incomplete way—
GENERAL FRANCISCO: Uh-huh.
JUSTICE SOTOMAYOR: — but that the President is the head of the executive branch and that he should have, for those who are in the extreme of this theory or – or on one end of the theory—
GENERAL FRANCISCO: Uh-huh.
JUSTICE SOTOMAYOR: — not extreme, that he can hire or fire anyone he wants and that he can put in place whatever policy he wants.
(Emphasis added.)
After Sotomayor completed a hypothetical, Francisco responded that the cabinet is “duty-bound to protect and defend the Constitution…. I would expect that if any cabinet member were given that order, that cabinet member would refuse to comply or resign….” Although not unprecedented, it is not common for a justice to bring into the oral argument in one case another case heard earlier in the week and undecided. Perhaps Sotomayor was trying to ferret out those arguments in this case. In the meantime, Mueller must be full speed ahead.
Daniel is a lawyer writing and teaching about SCOTUS, and is the author of the book “The Chief Justices” about the SCOTUS as seen through the center seat.