Trump’s firings of independent agency heads put 90-year-old Supreme Court precedent in crosshairs

Washington — President Trump’s firings of the members of independent agencies and boards have prompted a string of legal fights that could set the Supreme Court up to reconsider and potentially overturn a 90-year-old decision that shields certain executive branch officials from being removed after political shifts in the White House.

Since returning to the presidency, Mr. Trump has terminated the heads of the National Labor Relations Board and the Merit Systems Protection Board, as well as the director of the Office of Government Ethics and the special counsel, Hampton Dellinger, who oversees the office that investigates whistleblower complaints.

The officials learned of their firings through emails stating that they had been removed from their respective positions at their agencies, according to court filings.

But in subsequent lawsuits challenging their removal, some of the officials have alleged that Mr. Trump violated federal laws passed by Congress that created the agencies and limited the president to removing their members only for cause — in cases of neglect of duty or malfeasance. 

The president has said the heads of executive branch agencies should share his administration’s objectives, but the firings may have also been aimed at provoking these very legal challenges, with the ultimate goal of addressing the question to the Supreme Court. 

“It really was kind of a matter of time before a test case made its way to the court, where the court would have a chance to overrule Humphrey’s,” Joel Alicea, a law professor at the Catholic University of America, told CBS News.

Alicea was referring to the Supreme Court’s 1935 decision in the case Humphrey’s Executor v. United States, in which the court carved out an exception to the president’s power to remove executive officers. William Humphrey, appointed to a second term on the Federal Trade Commission by President Herbert Hoover, was asked to resign by President Franklin Roosevelt. The new president then fired him, citing their policy differences, rather than dismissing him for cause. The case is referred to a Humphrey’s Executor because he died not long after his firing, but the executors of his estate brought the case to pursue his back pay.   

In Humphrey’s Executor, the Supreme Court found that Congress could impose for-cause removal protections to multi-member commissions of experts that are balanced along partisan lines and do not exercise any executive power. The high court recognized another exception in 1988, which applies to certain inferior officers who have limited duties and lack policymaking or significant administrative authority.

In recent years, though, the Supreme Court has chipped away at its 1935 ruling and reasserted the president’s power to remove executive branch officers at will. Most notably in 2020, the Supreme Court ruled that the Consumer Financial Protection Bureau’s structure of a single leader removable only for inefficiency, neglect or malfeasance is unconstitutional.

“In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead,” Chief Justice John Roberts wrote for the court’s conservative majority. “While we have previously upheld limits on the president’s removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power.”

Now, nearly five years later, the high court is on track to revisit the issue of the president’s removal power and could overturn the nearly century-old ruling allowing Congress to protect the members of independent agencies from being fired at will.

In what is likely to be the Trump administration’s first Supreme Court emergency appeal of his second term, the solicitor general is expected to ask the high court to permit Dellinger’s firing, according to documents obtained Sunday.

Two justices, Clarence Thomas and Neil Gorsuch, who was appointed by Mr. Trump, have already indicated that it’s time for the Supreme Court to scrap its 1935 precedent.

“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” Thomas wrote in a concurring opinion to its 2020 decision on the CFPB, which was joined by Gorsuch.

Thomas, the longest-serving member of the court, said that in a future case, he “would repudiate what is left of this erroneous precedent.”

Three more members of the court, Roberts and Justices Brett Kavanaugh and Samuel Alito, all have experience working in the executive branch that could have shaped their views on executive power.

“This has nothing to do with the justices’ ideological leanings or which president appointed them,” Alicea said. “This has to do with deeply held views about the nature of presidential removal under Article II of the Constitution, and these are views that some of these justices have had for decades.”

At least one of the officials fired by Mr. Trump recognized that she may be part of a broader plan to target the Supreme Court’s 1935 ruling. Gwynne Wilcox, the chair of the National Relations Board, received an email on behalf of the president on Jan. 27 informing her and the agency’s general counsel that they had been “removed from the office of members of the National Labor Relations Board.”

But the National Labor Relations Act, passed by Congress in 1935, restricts the reasons for removal of board members to “neglect of duty or malfeasance in office,” and requires that they receive “notice and hearing.”

Mr. Trump’s firing of Wilcox was a “blatant violation” of that law, she wrote in a lawsuit challenging her removal. But Wilcox also said that the president’s action was “apparently designed to test Congress’s power to create independent agencies like the board.”

“Although Ms. Wilcox has no desire to aid the president in establishing a test case, she is also cognizant of the fact that, if no challenge is made, the president will have effectively succeeded in rendering the NLRA’s protections — and, by extension, that of other independent agencies — nugatory,” her lawyers wrote.

Citing Humphrey’s Executor, Wilcox’s legal team wrote that Congress has relied on that decision for decades when structuring independent agencies and warned that “abandoning it now could cast a cloud over a wide variety of agency decision-making.”

But Alicea said that if Humphrey’s Executor is reversed, it would bring these agencies under the direction of the president.

“The American people will have more control over their own government by having a president who they elect that superintends the entire federal bureaucracy, and I think that’s a much better and much healthier constitutional structure than what we’ve had since the New Deal, where you have agencies that are largely insulated from direct presidential control and oversight, and therefore less politically accountable to the American people,” he said.

The Trump administration, too, has laid out its roadmap: It plans to urge the Supreme Court to overrule Humphrey’s Executor.

In a letter to Sen. Dick Durbin, the top Democrat on the Judiciary Committee, dated Wednesday, acting Solicitor General Sarah Harris said the Justice Department believes certain for-cause removal provisions that apply to members of multi-member commissions are unconstitutional. 

The department, she wrote, will no longer defend the constitutionality of those provisions. Harris specifically pointed to the protections for members of three agencies that the Trump administration believes violate the Constitution: the Federal Trade Commission, the National Labor Relations Board and the Consumer Product Safety Commission.

“To the extent that Humphrey’s Executor requires otherwise, the department intends to urge the Supreme Court to overrule that decision, which prevents the president from adequately supervising principal officers in the executive branch who execute the laws on the president’s behalf, and which has already been severely eroded by recent Supreme Court decisions,” Harris wrote.

As acting solicitor general, Harris represents the federal government before the Supreme Court. Mr. Trump has nominated D. John Sauer, his former defense attorney, for the role but he has not yet been confirmed.

Durbin, an Illinois Democrat, said in response to Harris’ letter that it’s been the law of the land for decades that members of bipartisan, independent agencies are protected from removal by the president and can only be terminated for cause.

“But under President Trump, the Justice Department will no longer defend these duly-enacted laws and will instead push the Supreme Court to overturn a nearly-century-old Supreme Court precedent upholding the constitutionality of these statutes,” he said in a statement. “This is a striking reversal of the Justice Department’s longstanding position under Republican and Democratic presidents alike, but not surprising from an administration that is only looking out for wealthy special interests — not the American people.”