The Trump Administrator’s eagerness to pursue the removal issue could not be more palpable. First, the current solicitor general, Noel Francisco, reversed the position of the Obama Administration, which had defended the Securities and Exchange Commission, and put the government instead on Lucia’s side. Then, contrary to Lucia’s lawyers, who have explicitly argued that the removal question is not properly presented, Francisco urged the Court to address the removal question. When the Court declined to include the removal issue in its grant of certiorari, Francisco went ahead and briefed it anyway, urging that ALJ’s must be dischargeable for any “failure to perform adequately or to follow agency policies, procedures, or instructions.” The Supreme Court has now granted him permission to share in the oral argument on behalf of Lucia, even though among the reasons Francisco gave for sharing the podium is precisely that “only the government has addressed in its brief the merits of the removal question.” In a normal case, that would be a very strong reason for the Court not to take up the issue.

The solicitor general’s breach of norms is best seen as the latest official salvo in the battle for unitary-executive theory, a constitutional view embraced by the Federalist Society since its founding in the 1980s. Adherents to this theory believe that the Constitution guarantees the president complete authority over how officials within the executive branch exercise all the administrative discretion Congress has vested in them. This implies, in their view, a presidential entitlement to remove all such officials at will—or at least for “failure … to follow … instructions.” They believe the Supreme Court was wrong in 1935 to uphold Congress’s power to insulate members of the Federal Trade Commission from at-will discharge. They believe the Court was wrong in 1988, when it upheld Congress’s power to similarly protect independent counsels.

And they are chomping at the bit to put this theory into action. In 2011, U.S. Court of Appeals Judge Brett Kavanaugh, a Federalist Society stalwart, wrote a concurrence that, despite his disclaimer, was all but a brief for overturning the Supreme Court’s 1935 precedent. His opinion was gratuitous advocacy in a case that did not require calling the Supreme Court’s earlier decisions into question, a performance he all but repeated just last year. (Judge Kavanaugh’s zeal may seem ironic given that his first claim to fame was as associate counsel to the independent counsel Kenneth W. Starr, whose remit to pursue President Bill Clinton Kavanaugh presumably now thinks was unconstitutional.)

But as the solicitor general’s current conduct illustrates, neither lawyerly nor judicial norms may deter champions of unitary-executive theory from trying to goad the Supreme Court into whittling away at administrative independence from the president. A Supreme Court majority could oblige. They may well be unwilling to strip adjudicators like ALJ’s of all removal protection. But the way they write an opinion could affect public perception surrounding the legitimacy of a potential Mueller dismissal. The Court might suggest without deciding, for example, that there is a genuine and unresolved issue whether presidents are entitled to fire all “Officers of the United States” who are not adjudicators like the ALJ’s. Yet five votes even hinting that the constitutional status of an officer in Mueller’s position is in question will embolden President Trump and his most constitutionally aggressive advisers. They will baselessly assert that the Court’s handling of the issue—even if not addressing, much less resolving the question—implies that a Court majority might uphold a direct presidential dismissal of the special counsel.