Trump asks Supreme Court to let him fire independent regulators

Rule of Law

Trump asks Supreme Court to let him fire independent regulators

The Trump administration on Wednesday asked the Supreme Court to allow the president to remove a pair of independent regulators whose cases have broad implications for at least two dozen other agencies, including the Federal Reserve Board, and for how the federal government operates.

President Donald Trump has moved aggressively to seize greater control of the bureaucracy, ousting independent watchdogs and removing the two Democrats on the Federal Trade Commission, which protects consumers from deceptive practices and monopoly power.

The cases before the Supreme Court involve Gwynne Wilcox of the National Labor Relations Board, which oversees laws protecting workers’ rights, and Cathy A. Harris of the Merit Systems Protection Board, which protects federal government workers from partisan practices — as well as a 90-year-old court precedent the Trump administration is seeking to overturn.

Lower-court judges reinstated Wilcox and Harris after they were fired, with the judge in Wilcox’s case writing that Trump’s “interpretation of the scope of his constitutional power — or, more aptly, his aspiration — is flat wrong.”

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit reversed that ruling, siding with Trump, only to see the full D.C. Circuit return the pair to their posts this week while litigation continues.

“This situation is untenable,” Solicitor General D. John Sauer told the justices in an emergency request filed Wednesday. “The President should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the Administration’s policy objectives for a single day — much less for the months.”

He asked the justices to quickly schedule oral argument in the case in May.

The pair of cases test the boundaries of presidential power and to what extent the Supreme Court will allow Congress to constrain the president from summarily firing independent agency leaders without good reason. Lawyers for Harris and Wilcox will have an opportunity to respond to the Trump administration’s request before the justices decide whether the two women can remain in their posts for now and whether to schedule their cases for oral argument next month.

Since 1935, the Supreme Court’s decision in Humphrey’s Executor v. U.S. has permitted job protections for independent agencies led by multimember, bipartisan boards. But the current court’s conservative majority, with three Trump nominees, has taken a robust view of presidential authority and shown skepticism toward independent agencies, particularly those led by a single director.

If the Supreme Court were to remove job protections for board members and overturn the Humphrey’s Executor decision, “it would be a real earthquake in terms of the way our government operates. All these agencies that people may not think about have a real impact on people’s day-to-day lives,” said Brianne Gorod, chief counsel of the Constitutional Accountability Center, which filed a brief in support of Harris and Wilcox at the D.C. Circuit.

The Constitution gives the president the power remove top executive-branch officials for any reason at all. But Congress set up independent agencies like the Consumer Product Safety Commission to ensure they would have expertise, stability and insulation from day-to-day politics.

The Trump administration says that those laws — signed by presidents in both parties — are an unconstitutional encroachment on the president’s powers and that he must be able to put his own people in place. Trump lawyers have already told Congress they are prepared to ask the Supreme Court to overturn Humphrey’s Executor, which involved the FTC.

In its filing Wednesday, the Trump administration said the precedent does not apply to the boards on which Harris and Wilcox sit because they “wield substantial executive power in implementing and enforcing federal labor and civil-service laws” — an assertion the full D.C. Circuit rejected.

More broadly, the administration is seeking to sideline power centers outside White House control and to clear the way for Trump to install business-friendly replacements who can deliver on his promise to reduce regulations. Companies like Elon Musk’s SpaceX and retailer Amazon have also sued the NLRB, making similar claims that the structure is unconstitutional. (Amazon founder Jeff Bezos owns The Washington Post.)

The Trump administration’s robust view of a president’s power is consistent with the so-called unitary executive theory that dates to the Reagan administration and stands for the idea that the president is the person in which all executive power is vested, so the president needs to be able to control everything the executive branch does.

Cass R. Sunstein, a Harvard Law professor who worked in the Reagan Justice Department and for the Obama administration, says Trump is the first president since the 1930s to try to assert control over so many independent regulators. If he is successful in court, Sunstein wrote in a recent column, it could lead to a significant shift in power to the White House that would be unsettling and potentially dangerous.

If presidents took control of the Federal Reserve Board, for instance, they could promote their own short-term political interests by reducing interest rates, to the detriment of the economy’s long-term health. At the Federal Communications Commission, the president could use the agency to punish political enemies and manipulate the media market to promote a particular agenda, Sunstein wrote in an article with Harvard Law professor Adrian Vermeule titled “The Unitary Executive: Past, Present, Future.”

The Supreme Court’s decision last summer shielding presidents from prosecution for official actions has provided additional fodder for Trump’s maximalist view of executive power.

In asking the court in another case to allow Trump to immediately fire Hampton Dellinger as head of the Office of Special Counsel, the acting solicitor general quoted from that immunity decision: “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority” — including “the President’s ‘unrestricted power of removal’ with respect to ‘executive officers of the United States whom [the President] has appointed.’”

Gregg Nunziata, executive director of the Society for the Rule of Law, a right-of-center legal organization that has been critical of Trump, said it’s not clear the Supreme Court was thinking about a president’s removal powers when it wrote the immunity decision.

“The court maybe anticipated that Trump v. U.S. wouldn’t come up again for a generation, but it turns out they may need to revisit sooner,” Nunziata said of its immunity decision.

Lawyers for Wilcox and Harris have tried to distinguish their circumstances as part of multimember boards from Dellinger, who was the sole director of an agency that protects government whistleblowers. Dellinger dropped his case after losing at the D.C. Circuit.

In 2020, the Supreme Court said the structure of a different agency, the Consumer Financial Protection Bureau, was unconstitutional because of the unchecked power of its single director, who was insulated from direct presidential control.

“Under our Constitution, the ‘executive Power’ — all of it — is ‘vested in a President,’” wrote Roberts, who was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

That decision in Seila Law, however, left standing Humphrey’s Executor — the case allowing independent expert agencies with multiple members who can be fired only for good cause. But Thomas, joined by Gorsuch, made clear they would have gone further. The 1935 decision “poses a direct threat to our constitutional structure,” Thomas wrote.

In dissent, liberal Justice Elena Kagan said the court has long allowed Congress and the president to create zones of administrative independence by limiting the president’s power to remove agency heads. She pointed to the Federal Reserve Board, the FTC and the NLRB.

“Almost all independent agencies are controversial, no matter how many directors they have. Or at least controversial among Presidents and their lawyers,” wrote Kagan, joined by the court’s other liberal justices. “That’s because whatever might be said in their favor, those agencies divest the President of some removal power.”