Is there anyone in government Trump can’t fire?
Why Humphrey’s Executor may be in peril at the Supreme Court
CNN — President Donald Trump’s purge at independent agencies is putting a target on a nearly 100-year-old Supreme Court precedent that protects certain officials from the political whims of the White House.
Since taking office four weeks ago, Trump has rapidly fired a member of the National Labor Relations Board, two commissioners charged with enforcing civil rights laws in the workplace and, most recently, the top federal official who handles government workers’ whistleblower complaints.
Some of the officials Trump is targeting enjoy protections in federal law that bar their removal without cause. But many conservatives – including some who sit on the Supreme Court – have chafed at the idea that a president can’t fire people in the executive branch at will.
The litigation is almost certain to queue up a Supreme Court case challenging a key 1935 precedent, Humphrey’s Executor v. US, that allows Congress to require presidents to show cause – such as malfeasance – before dismissing board members overseeing independent agencies.
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Overturning that ruling would give presidents immense power to sweep away from service officials who enforce anti-trust laws, labor rules and disclosure requirements for publicly traded companies.
“Over a four-year horizon, I think Humphrey’s Executor is destined for the graveyard,” predicted Dan Wolff, who leads the administrative law litigation practice at the Crowell & Moring law firm. “I don’t think I’m going out on a limb by saying there’s likely a majority ready to overturn Humphrey’s Executor in the right case.”
The swift pace of firings appear designed to force the Supreme Court’s hand, in the same way Trump appears eager to challenge other longstanding legal norms like birthright citizenship and the president’s power to require spending.
Acting Solicitor General Sarah Harris on Wednesday told Senate Democrats that the Justice Department “intends to urge the Supreme Court to overrule” the 1935 decision, “which prevents the president from adequately supervising principal officers in the executive branch who execute the laws on the president’s behalf.”
In a letter to Illinois Sen. Dick Durbin, the top Democrat on the Senate Judiciary Committee, Harris wrote that her office would no longer defend the constitutionality of for-cause removal provisions for the Federal Trade Commission, the National Labor Relations Board and the Consumer Product Safety Commission.
“The department,” Harris wrote, “has concluded that those tenure protections are unconstitutional.”
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Hampton Dellinger, the government’s special counsel, is the latest independent official who is fighting dismissal by the White House. In a lawsuit filed in federal court in Washington, DC, on Monday, Dellinger pointed to the 1935 decision in Humphrey’s Executor decision as a “binding Supreme Court precedent” that he asserted should bar his firing by the president.
Dellinger, who was serving a five-year term, was appointed by President Joe Biden and confirmed by the Senate early last year.
The Office of Special Counsel is unrelated to the special counsels that have been used by the Justice Department in recent years to investigate Trump, Biden and others. Rather Dellinger’s role was to enforce federal whistleblower laws protecting civil servants who report problems within agencies.
A federal judge on Wednesday said Dellinger can stay on the job while the legal challenge to his termination is further litigated.
The Supreme Court, where conservatives hold a 6-3 supermajority, has signaled skepticism in recent years about the for-cause protections Congress sometimes includes for executive branch officials.
Four years ago, the court’s conservatives held that such protections for the head of the Consumer Financial Protection Bureau violated separation of powers principles. The president’s power to “remove – and thus supervise – those who wield executive power” flows directly from the Constitution, Chief Justice John Roberts wrote for the majority.
“The CFPB director has no boss, peers, or voters to report to,” Roberts wrote. “Yet the director wields vast rulemaking, enforcement, and adjudicatory authority over a significant portion of the US economy.”
But the court’s 5-4 decision left Humphrey’s in place, with Roberts noting that it applied only to independent agencies led a by a single director rather than multi-member boards. Conservative Justice Clarence Thomas, joined by Justice Neil Gorsuch, would have gone further. They framed the precedent as a “direct threat to our constitutional structure and, as a result, the liberty of the American people.”
“In a future case,” Thomas wrote, “I would repudiate what is left of this erroneous precedent.”
Trump’s early moves seem designed to give Thomas that “future case.”
Perhaps the most direct challenge will come from Trump’s decision to fire Gwynne Wilcox, the former chair of the National Labor Relations Board. Wilcox sued Trump in US District court in Washington, DC, last week, claiming that hers was one of a “string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress’s power to create independent agencies.”
“The firing of the NLRB chair, more than any other, sets up a direct challenge to Humphrey’s Executor, both because of the clear statutory language requiring cause for removal, and because the suit is directly against the removal decision,” said Jonathan Adler, a professor at the Case Western Reserve University School of Law.
The precedent, he said, “is now directly in the crosshairs.”
The Humphrey’s Executor case dates to President Franklin Roosevelt, who fired a commissioner of the Federal Trade Commission in 1933 who was appointed by President Herbert Hoover. William Humphrey continued to argue he was a member of the commission until his death in 1934. His estate sought to recover his salary during the period after his firing and the Supreme Court unanimously agreed that his dismissal was improper.
“It is quite evident,” the court wrote then, “that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.”
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CNN