Washington — The dismissals of several independent agency and board members by President Trump have ignited a series of legal battles that may lead the Supreme Court to reevaluate and possibly overturn a decision from 90 years ago, which protects certain executive branch officials from being dismissed during political transitions in the White House.
Upon returning to the presidency, Mr. Trump has removed the heads of the National Labor Relations Board, the Merit Systems Protection Board, the director of the Office of Government Ethics, and special counsel Hampton Dellinger, who manages the office tasked with investigating whistleblower allegations.
The officials were informed of their terminations via emails, which indicated their removals from their respective positions, according to legal documents.
In the lawsuits that followed, some of the ousted officials claimed that Mr. Trump breached federal laws established by Congress when creating these agencies, limiting the president’s ability to remove members solely for valid reasons, such as neglect of duty or misconduct.
The president contended that the leaders of executive branch agencies should align with his administration’s goals; however, these firings might have also been designed to instigate the very legal challenges aimed at bringing the issue before the Supreme Court.
“It was only a matter of time before a test case reached the court, providing an opportunity to overturn Humphrey’s,” remarked Joel Alicea, a law professor at the Catholic University of America, to CBS News.
Alicea referenced the 1935 Supreme Court ruling in Humphrey’s Executor v. United States, which created an exception to the president’s ability to dismiss executive officers. William Humphrey, who was reappointed to the Federal Trade Commission by President Herbert Hoover, was requested to resign by President Franklin Roosevelt. Following his refusal to do so, the new president fired him, citing policy differences rather than legitimate cause. The case is named for Humphrey because he passed away shortly after his dismissal, leading his estate’s executors to pursue his back pay.
In its decision in Humphrey’s Executor, the Supreme Court determined that Congress can impose removal protections for multi-member commissions of experts that are politically balanced and do not wield executive authority. The Court established another exception in 1988, aimed at certain inferior officers with limited responsibilities lacking significant policymaking powers.
Recently, however, the Supreme Court has diminished the scope of the 1935 ruling, reinforcing the president’s authority to dismiss executive branch officials as desired. The most notable instance occurred in 2020 when the Supreme Court ruled that the structure of the Consumer Financial Protection Bureau, which featured a single director removable only for inefficiency, neglect, or malfeasance, was unconstitutional.
“In our constitutional framework, executive power is vested in the president, which generally includes the authority to oversee and dismiss the agents executing that power on his behalf,” wrote Chief Justice John Roberts for the court’s conservative majority. “While we previously upheld restrictions on the president’s removal power in specific contexts, we decline to apply those limitations to principal officers who, individually, hold substantial executive power.”
Now, nearly five years later, the Supreme Court is poised to reconsider the president’s removal authority yet again, potentially overturning the near-century-old decision that permits Congress to safeguard independent agency members from being terminated at will.
In what is expected to be the Trump administration’s first Supreme Court emergency appeal of its second term, the solicitor general may request the Court to allow Dellinger’s termination, as indicated by documents released on Sunday.
Two justices, Clarence Thomas and Neil Gorsuch, appointed by Mr. Trump, have already suggested a need to abolish the 1935 precedent.
“The ruling in Humphrey’s Executor poses a direct threat to our constitutional framework and, consequently, the liberty of the American populace,” wrote Thomas in a concurring opinion regarding the 2020 CFPB decision, joined by Gorsuch.
As the longest-serving member of the court, Thomas asserted that in a forthcoming case, he would “repudiate whatever remains of this erroneous precedent.”
Three additional justices, Roberts along with Brett Kavanaugh and Samuel Alito, all have backgrounds in the executive branch which may influence their perspectives on executive authority.
“This is not about the ideological stances of the justices or their presidential appointees,” Alicea stated. “It revolves around firmly held beliefs regarding the nature of presidential removal as outlined in Article II of the Constitution, views that some of these justices have maintained for decades.”
At least one of the officials who was dismissed by Mr. Trump recognized her potential involvement in a broader initiative to challenge the Supreme Court’s 1935 ruling. Gwynne Wilcox, the chair of the National Labor Relations Board, received an email from the president on Jan. 27, notifying her and the agency’s general counsel of their “removal from the office of members of the National Labor Relations Board.”
However, the National Labor Relations Act, enacted by Congress in 1935, limits the reasons for removing board members to “neglect of duty or malfeasance in office,” also requiring “notice and a hearing.”
Mr. Trump’s dismissal of Wilcox was a “blatant violation” of that law, she asserted in a lawsuit contesting her removal. Yet, Wilcox also indicated that the president’s action appeared “designed to test Congress’s authority to establish independent agencies like the board.”
“While Ms. Wilcox does not wish to assist the president in crafting a test case, she is aware that failing to challenge this action would effectively allow the president to nullify the NLRA’s protections — and, by extension, those of other independent agencies,” her legal representatives stated.
Referencing Humphrey’s Executor, Wilcox’s legal team highlighted that Congress has relied on this ruling for decades when structuring independent agencies, cautioning that “overturning it now could create uncertainty around various agency decision-making processes.”
In contrast, Alicea mentioned that if Humphrey’s Executor is overturned, it would place these agencies under presidential authority.
“The American people would gain greater control over their government through having an elected president who oversees the entire federal bureaucracy, which I believe represents a healthier constitutional structure compared to what we’ve experienced since the New Deal — agencies largely insulated from direct presidential oversight and therefore less politically accountable to the public,” he noted.
The Trump administration has also outlined a strategy: It intends to advise the Supreme Court to overrule Humphrey’s Executor.
In a letter addressed to Sen. Dick Durbin, the leading Democrat on the Judiciary Committee, dated Wednesday, acting Solicitor General Sarah Harris indicated that the Justice Department views some for-cause removal clauses applicable to members of multi-member commissions as unconstitutional.
She stated that the department will no longer defend the constitutionality of those clauses, specifically referencing the protections for members of three agencies that the Trump administration believes contravene the Constitution: the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission.
“If Humphrey’s Executor requires otherwise, the department will advocate for the Supreme Court to overrule that decision, which interrupts the president’s ability to supervise principal officers in the executive branch executing the laws on the president’s behalf and has already been significantly undermined by recent Supreme Court rulings,” Harris wrote.
As acting solicitor general, Harris represents the federal government in cases before the Supreme Court. Mr. Trump has nominated D. John Sauer, his former defense attorney, for this role, pending confirmation.
Durbin, an Illinois Democrat, responded to Harris’ letter stating that it has been the law for decades that members of bipartisan, independent agencies are protected from presidential dismissal and can only be terminated for legitimate cause.
“However, under President Trump, the Justice Department will cease to defend these duly-enacted laws and will instead seek to persuade the Supreme Court to overturn nearly a century of established precedent that affirms the constitutionality of these statutes,” he remarked in a statement. “This marks a striking departure from the Justice Department’s longstanding stance under both Republican and Democratic presidents, but it is not unexpected from an administration that prioritizes wealthy special interests over the American populace.”
