The Supreme Court Must Recognize That The Executive’s Great Powers Also Mean Smaller Powers
Western law is derived in large measure from Jewish legal principles. The rabbis expound on Rabbi Yishmael’s 13 Principles (Middot) of interpretation, even expanding to some by Rabbi Akiva. Perhaps the most important of all is kal vachomer, “light and heavy.”
This principle says that if something is forbidden in a minor situation, it is also forbidden in a more weighty (important, stringent, etc.) situation. The reverse also applies. If something is not allowed in a prominent situation, it isn’t allowed in the minor one either. Finally, this rule also applies to what is allowed. These principles matter a great deal when considering the efforts leftist judges are making to prevent President Trump from carrying out his election mandate to govern under the Constitution.
Americans are intuitively aware of Trump’s mandate to govern. As James Woods puts it, “How do Republicans hold all the power yet can’t bring criminals to justice, but Democrats push all these hoaxes through and hold hearings nonstop? Is there one single Republican with balls besides Trump? Just one?”
The injustice of this situation is part of why we elected Donald Trump. It’s also why we cheer when an FBI agent who tried to take Trump down during his first term is arrested at JFK airport trying to flee the country after leaking classified information. We shouted for Hillary Clinton to be arrested for national security violations with her unsecured server and for James Comey to be taken down for his blatant leaking. This list of gross injustices is, to quote Goose, “long and distinguished.”
Image by Grok.
Yes, we’re starting to see formerly “privileged” individuals called to account for their previously protected criminal activity. But that isn’t the big issue. Donald Trump (Surprise, surprise!) is at the center, both in what he’s doing, what the courts are doing to stop him, and what American legal principles and kal vachomer say that Trump should be able to do. This essay will walk you through it.
In my recent AT post, I covered a list of cases that acknowledge that current Supreme Court precedent creates some restrictions on who and how the President can fire. In addition to those cases, some others you can review are Humphrey’s Executor v. United States (1935), as modified by Seila Law v. CFPB (2020), and Bessent v. Dellinger (2025, DC Court of Appeals).
The upshot of these Supreme Court-created firing restrictions is that America has a permanent, protected class of bureaucrats. In practical fact, they are not answerable to anyone, and this is the root of our public distaste for government. Government is supposed to serve us, but instead, it serves itself.
The Federal Mediation and Conciliation Service stands as a sentinel example near K Street. While fewer than a hundred officially occupy offices in its luxurious nine-story office building, it has little real oversight and great personal privileges. Similar sinecures exist all through the government.
As DOGE discovers each new nest of feral feds, that information is handed to Trump’s department heads, and these heads then terminate those feral feds’ paychecks and privileges. Almost immediately, however, some federal court judge then issues an order demanding that Trump give the candy back to the babies. In most cases, the reasons come from one of two “legal authorities.”
The first legal authority arises in the case of USAID and other similar agencies. There, the Court will say that the employees are protected by the Civil Service Act (“CSA”), and Trump didn’t jump through the hoops that it and the Administrative Procedures Act require. That means that he violated the law. And technically, if we’re talking about the CSA, he probably did violate the law’s terms. It has a maze of protections that make it almost impossible to terminate a federal employee.
But pointing to the CSA is looking in the wrong direction. The Constitution is the highest law in the land, and the CSA directly contradicts Article II, § 1, which gives all executive branch power to Donald Trump. No exceptions.
The President is required to “take Care that the Laws be faithfully executed” (Art II, § 3). Since the CSA is a “law,” it would seem that he is required to follow the CSA. But that would see him violate the vesting clause, which is a higher law. So, either the President is required to break the CSA to follow the Constitution to get rid of employees that are supernumerary or acting contrary to the President’s direction, or he has to break his oath to the Constitution.
That’s an interesting issue but it doesn’t touch upon the kal vachomer principle. That shows up when we get to the second line of cases involving Trump’s firing agency directors for the Federal Trade Commission, Office of Government Ethics, and Merit Systems Protection Board. The president has the sole constitutional authority to nominate these people, with the Senate then confirming them under its power to “advise and consent” (Art II, § 2, Cl 2). At present, the claim is that these directors are protected from being fired without specified notice and cause, under a line of cases following Humphrey’s Executor. But, as noted in my prior post, that case is ready to be overturned since it conflicts with Article II, § 1.
Our key case, which is still the core of all cases around the President’s power to fire, is Myers v. United States (1926), which clarified that the President has the freedom to fire any official he nominated and the Senate confirmed. In short, it says that the President’s power to appoint also includes the unfettered power to remove.
The only excuse in the other cases for tying the president’s hands is that the agencies were somehow “independent.” But this stands even further from the Constitution in that this idea creates an unaccountable fourth branch of government. As Star-Kist used to say, “Sorry, Charlie.” There are only three branches, and this is a key reason that the current justices seem poised to overturn Humphrey’s Executor. But what does this have to do with Jewish legal principles?
It’s easy to point out Article II, § 1. But the real principle has to do with Myers. This case established that the President can terminate at will the service of the highest level officers in his Cabinet. Lower-level firings logically fall under the principle of kal vachomer: If the President has the power to remove the highest and most important officers, that “heavy” task necessarily includes the “lighter” task of removing officers in the so-called “independent agencies.” Thus, if there is no legal reason to prevent the President from removing Cabinet level officers he appointed, there is similarly no legal reason to prevent him from removing any officer he has appointed.
Let’s follow this rabbit trail. If the President has the power under the principle of kal vachomer to remove all the officials he appoints, then he also has the power to remove anyone who works for those higher-level officials. In short, he has plenary hiring and firing authority throughout the Executive branch. But isn’t that what Article II, § 1 says? After all, we already know that because the Constitution also makes him the Commander in Chief (Article II, § 2) of the armed forces, Trump can drum out every transgender with a stroke of his pen, and no one has the right to question him—not even Judge Ana Reyes.
Ultimately the Supreme Court is going to have to return to Constitutional order. It does not matter that some lefty lawyer complains. Donald Trump can fire the entire Executive branch in one fell swoop if he chooses. Of course, that might leave him with no one to “take Care that the Laws be faithfully executed.” At the same time, this ridiculous example makes it clear that resistance is futile.
Ted Noel is a retired physician who posts on social media as Doctor Ted. His Doctor Ted’s Prescription podcast is available on multiple podcast channels.
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