Trump’s Firings Target 90-Year-Old Precedent Protecting Independent Agencies

The D.C. District Court has recently handed President Donald Trump three losses in a row by ruling that he violated federal laws in firing the heads or board members of independent agencies. But the legal battle over the dismissals is just beginning. 

The Trump administration has said it wants to get lawsuits challenging the dismissals before the Supreme Court’s Republican-appointed majority in hopes of overturning Humphrey’s Executor v. U.S., a 90-year-old ruling that serves as the backbone of agencies’ authority to operate without direct control from the White House.

“To the extent that Humphrey’s Executor requires otherwise, the Department [of Justice] intends to urge the Supreme Court to overrule that decision,” Sarah Harris, the acting solicitor general of the U.S., wrote in a letter to Rep. Jamie Raskin (D-Md.) last month.

Experts note that the Roberts Court in recent years has been skeptical of congressional limits on the president’s removal power.

“I would be very surprised if they didn’t overturn it,” Alan Morrison, a professor of law at George Washington University who has argued 20 cases in the Supreme Court, told Democracy Docket, referring to Humphrey’s Executor.

Trump, through dismissals, unprecedented executive orders and statements on presidential power, has made clear he wants complete control over executive branch personnel. Humphrey’s, which prevents presidents from arbitrarily firing certain federal agency leaders without cause, is the key case that stands in the way of that goal — at least for now.

A Supreme Court ruling overturning Humphrey’s could affect termination protections for appointed members of the Federal Trade Commission, Securities Exchange Commission and the Commodity Futures Trading Commission, Morrison added. Even the independence of the Federal Elections Commission, the U.S. Tax Court and ultimately the Federal Reserve could be threatened as well, he said.

If Trump gains the authority to fire members of those bodies, that would give his administration extraordinary powers to investigate and penalize private businesses and individuals, tilt elections and use monetary policy for political purposes.

The driving force behind Trump’s challenge to Humphrey’s, and what may influence conservative justices’ decision-making in future cases, is a once-fringe legal framework, known as the unitary executive theory, that generally asserts that Congress cannot limit the president’s ability to remove executive branch officials because Article II of the Constitution vests all executive power in the president.

The extreme version of the framework being advanced by Trump and his allies claims that the president can also affect the policy choices of all agencies, can impound congressionally approved funds and can unilaterally create and dismantle government agencies. Those assertions challenge Congress’s power of the purse and its ability to establish and define federal offices.

Humphrey’s Executor stemmed from President Franklin Roosevelt’s firing of a member of the Federal Trade Commission (FTC) in 1933 over political differences. Roosevelt acted even though the 1914 law that created the FTC only allowed a president to remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.”

Roosevelt’s administration argued that the “for-cause” provision was an unconstitutional interference with executive power, citing the Supreme Court’s 1926 decision in Myers v. U.S. In that ruling, the court, led by Justice William Howard Taft, a former president, gave the president exclusive and extensive powers to remove executive officials.  

The court in 1935 disagreed with Roosevelt, ruling that the for-cause requirement was constitutional and that Humphrey’s dismissal was unjustified. In doing so, the court rejected some of the removal powers granted through Myers, saying they did not fully apply to congressionally created agencies that perform quasi-legislative and judicial functions like the FTC.

In Harris’s letter to Raskin last month, she cited Myers, declaring that for-cause provisions and other removal limitations are unconstitutional. She also nodded to the Roberts Court, saying Humphrey’s “has already been severely eroded by recent Supreme Court decisions.”

So far, the D.C. District Court hasn’t bought the Trump administration’s arguments. The court found that Trump unlawfully fired Special Counsel Hampton Dellinger, Merit Systems Protection Board (MSPB) Chair Cathy Harris and National Labor Relations Board Chair Gwynne Wilcox. In each case, the judge cited Humphrey’s as limiting Trump’s removal power.

However, the Trump administration has appealed each ruling and won one of the dismissal challenges. Dellinger dropped his termination lawsuit after an appeals court stayed a lower-court order requiring him to be reinstated. Even so, Wilcox’s and Harris’s cases could still go before the Supreme Court.

In firing Harris and Dellinger, the Trump administration is targeting federal employees’ ability to challenge illegal personnel practices, like firing workers based on partisan politics, to bolster its efforts to further rend the government. 

Recently, Dellinger had worked to reverse some of the administration mass firings of federal workers. As chair of the MSPB, Harris has reinstated around 5,000 probationary workers. If Harris’s removal is ultimately upheld, or if she also drops her suit, it will be extremely difficult for federal workers to challenge ongoing and future improper terminations.

The Supreme Court in recent years has been receptive to bolstering the president’s removal power based on Article II. Most prominently, in 2020, it ruled in Seila Law v. Consumer Financial Protection Bureau (CFPB) that the for-cause removal protections Congress gave to the CFPB director in the Dodd-Frank Act were unconstitutional.

In the court’s majority opinion, Chief Justice John Roberts wrote that the president has broad authority to remove officials with two exceptions: those on multimember boards, like the FTC, and independent counsel.

 In a dissenting opinion Justices Neil Gorsuch and Clarence Thomas said the court should have overturned Humphrey’s, saying it “poses a direct threat to our constitutional structure” by paving “the way for an ever-expanding encroachment on the power of the Executive.”

Morrison, the George Washington law professor, said that if the Supreme Court continues to chip away at limits to the president’s removal powers, it risks exacerbating the political whiplash the country already experiences when the presidency transitions from one party to another. “I don’t think that’s a very good way to run the country,” he added.

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