Supreme Court expected to consider giving Trump more firing power, overruling 90-year-old precedent

President Trump’s firing spree of independent agency leaders is running into a 90-year-old Supreme Court case that judges have used to block many of those ousters.

Now, Mr. Trump’s allies are looking to the Supreme Court to overturn the case or at least carve out exceptions to justify the president’s housecleaning.

In a case known as Humphrey’s Executor, the high court in 1935 shot down President Franklin D. Roosevelt’s attempt to fire a member of the Federal Trade Commission over policy differences. The justices ruled that the FTC performed legislative and quasi-judicial functions, so its leadership was immune from the president’s traditional power to control the executive branch.

An independent agency head could be fired only for cause, not policy differences.

Some conservative legal scholars say the case has outlived itself, and they expect the current Supreme Court, with its makeup of six Republican and three Democratic appointees, to put the precedent out to pasture.

“Humphrey’s Executor is teed up for the Supreme Court to overrule or limit,” said Ilya Shapiro, director of constitutional studies at the Manhattan Institute.

Others wonder whether the justices will expand the president’s firing powers without squarely overruling the precedent. Eyes are particularly on Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett.

“I think the court has to take the issue, but Roberts may try to split the baby and only rule that courts lack the power to order reinstatement. That would leave unresolved for now the question whether the removal was valid,” Josh Blackman, a professor at South Texas College of Law, told The Washington Times in an email.

Mr. Trump has fired big and small. He has overseen buyouts and layoffs that axed tens of thousands of lower-level employees and targeted members and chief executives of agencies where he wants to exert more control.

Those include the National Labor Relations Board, the Federal Labor Relations Authority, the Office of Special Counsel, the Merit Systems Protection Board, the Federal Election Commission, the Equal Employment Opportunity Commission and a host of foreign aid agencies.

Lawsuits have proliferated, and Humphrey’s Executor is usually at the heart of the claims of fired feds.

“No other president in our lifetimes has ever attempted to violate for-cause removal statutes in this manner. The current chief executive is not being held to a different standard,” fired Merit Systems Protection Board member Cathy Harris argued through her attorneys in a brief to the Supreme Court this week. “He is being asked to follow binding precedent unless and until the court overturns it, just like his predecessors for nearly a century.”

Experts say the high court has been slicing away at Humphrey’s Executor for years.

That included a 2020 case, Selia Law, in which the justices ruled 5-4 that the president could remove the head of the Consumer Financial Protection Bureau, even though Congress had written the law to make that person fireable only for good cause.

The fired officials say the CFPB was special because it was led by a single chief. Multimember boards, particularly those with partisan balancing requirements, are different, the fired feds argued.

So far, lower court judges dealing with challenges to the Trump firings have split on Mr. Trump’s claims, though his opponents have emerged victorious more often than not.

In one case that went through the U.S. Circuit Court of Appeals for the District of Columbia, judges said Humphrey’s Executor “remains good law.” They allowed Ms. Harris and another fired agency chief, Gwynne Wilcox at the NLRB, to remain in their jobs while their cases developed.

Judge Karen L. Henderson dissented, saying the sooner the Supreme Court settles the matter, the better.

“Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better,” said Judge Henderson, a George H.W. Bush appointee. She called the issues at stake “significant and surprisingly controversial.”

The cases have reached the Supreme Court. Chief Justice Roberts has put a brief hold on the appeals court’s ruling allowing Ms. Wilcox and Ms. Harris to remain on the job while the cases proceed.

Curt Levey, president of the Committee for Justice, said Humphrey’s Executor could be severely curtailed in the coming months. He noted that the court has narrowed the precedent over the years and that the ruling appeared to be a stretch.

“It was viewed as a questionable decision, and I think there has been more of an assertion of the fact that executive power does rest entirely with the president,” Mr. Levey said. “You put that all together, and I think people see the handwriting on the wall. But whether the court will choose to do it decisively and overrule Humphrey’s or just further narrow it, I don’t know, but clearly the Trump administration is doing what it can to set up a case to test Humphrey’s.”