Supreme Court poised to grant Trump broader firing powers over independent agencies

ANALYSIS:

The Supreme Court signaled Monday a readiness to upend a 90-year-old precedent and grant presidents expansive powers to fire top officers at independent agencies, saying the way the commissions and boards are run now insulates them from political accountability.

Chief Justice John G. Roberts Jr. declared the 1935 precedent, a case known as Humphrey’s Executor, to be “just a dried husk” that has been overtaken by law and the modern expansive administrative state that runs much of government.

He and the court’s other Republican-appointed justices seemed ready to take up the call by President Trump’s attorney, Solicitor General D. John Sauer, to find that agencies such as the Federal Trade Commission, the National Labor Relations Board and the Merit Systems Protection Board must fall under full presidential control.

“The Constitution requires clear lines of political accountability,” Mr. Sauer told the court.

The prospect horrified the court’s Democratic appointees.

“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Justice Sonia Sotomayor, an Obama appointee, told Mr. Sauer.

Overturning the precedent and confirming expansive presidential firing powers would be a major victory for conservatives who have advanced the “unitary executive” theory of government, which generally holds that a president has total control over people and powers deemed to be part of the executive branch.

The case before the justices sprang from Mr. Trump’s firing of Federal Trade Commissioner Rebecca Slaughter, first appointed under Mr. Trump and reappointed under President Biden.

The law allows firing only for cause, which generally means some form of malfeasance. Mr. Trump offered no evidence of malfeasance in his removal of Ms. Slaughter.

In Humphrey’s Executor, the court ruled that the Federal Trade Commission Act was legal and President Franklin D. Roosevelt couldn’t remove a commissioner for political and policy reasons.

The Republican appointees to the bench said the decision has suffered in the nine decades since it was handed down. The court most recently chipped away at Humphrey’s Executor in the 2020 Seila Law decision, ruling that the for-cause protections for the director of the Consumer Financial Protection Bureau were unconstitutional.

“There has been an erosion of Humphrey’s Executor over the years,” said Justice Amy Coney Barrett, a Trump appointee and often a swing vote on the court.

Mr. Trump has made similar moves at the NLRB, the MSPB, the Office of Special Counsel, the Library of Congress, the Consumer Product Safety Commission, the Equal Employment Opportunity Commission and the Nuclear Regulatory Commission, among others.

Mr. Sauer counted about two dozen such agencies in which presidential firing powers are constricted.

Mr. Trump has also attempted to fire Lisa Cook, a member of the Federal Reserve Board of Governors. In that case, he did suggest cause, pointing to his administration’s allegations of mortgage fraud.

Mr. Sauer said the Federal Reserve is unique and isn’t covered by the arguments over the other agencies.

That issue appeared dear to Justice Brett M. Kavanaugh, a Trump appointee, who said he had “concerns” about firing authority at the Federal Reserve.

Mr. Sauer said the FTC case doesn’t affect the establishment of tribunals that fall outside the traditional courts, such as the tax court or federal claims court.

The Supreme Court has allowed Mr. Trump to carry out the firings at the FTC, NLRB and MSPB while those cases percolated up from lower courts, underscoring their readiness to move beyond the Humphrey’s Executor framework.

The justices have allowed Ms. Cook to remain in her post at the Federal Reserve, suggesting they view the matter differently.

Justice Elena Kagan predicted chaos if the court expands the president’s firing powers.

“If there is one thing we know about the Founders, they wanted powers separated,” she said.

Justice Kagan said what has emerged over the centuries is a grand bargain, struck by congresses and presidents, to share power in some areas through these independent agencies. That means Congress has transferred some of its legislative powers to agencies’ rulemaking authority, but in return, it has demanded insulation from a president’s total control.

“They’ve given all of that power to these agencies largely with it in mind that the agencies are not under control of a single person, of the president, but indeed Congress has a great deal of influence over them too,” Justice Kagan, an Obama appointee, told Mr. Sauer. “The result of what you want is that the president is going to have massive unchecked, uncontrolled power.”

Justice Neil M. Gorsuch said the Founders would not have recognized that bargain and blamed the judiciary for not setting better boundaries.

“This court, as part of this bargain, has allowed these agencies to exercise both executive and legislative,” said Justice Gorsuch, a Trump appointee.

Amit Agarwal, attorney for Ms. Slaughter, urged the justices to leave the matter to the give-and-take of Congress and the president.

“These are really difficult line-drawing problems, and the way that has been resolved is through the political process,” Mr. Agarwal said.

He struggled to draw his own lines.

Several justices envisioned a Congress and a president of the same party creating agencies or converting existing departments into independent commissions or boards with lengthy terms, putting them beyond the reach of a subsequent president of the opposite party.