A historic Supreme Court ruling that has been a sturdy part of the Constitution’s checks on the awesome powers of the Presidency could be the next landmark to fall. The Trump Administration plans to ask the Court to overrule that 90-year-old decision as part of wide-ranging efforts to build up presidential authority.
In a letter to Congress Wednesday, a high-ranking Justice Department official said that the Administration will pursue a challenge in the Court to the 1935 ruling in Humphrey’s Executor v. United States. That precedent was strongly reaffirmed by the Court as recently as 1958, but in more recent years, the Court’s conservative majority has been narrowing the precedent; as of now, it still acts as a restraint on the Presidency.
The dispute now unfolding over that restraint is taking the nation back to one of the founding principles of the Constitution: the separation of powers into three branches of the national government, with each acting as a “check and balance” against the concentration of power in any one branch. After declaring independence from royal Britain, the founding generation was deeply suspicious of great power as a threat to human liberty.
The U.S. President who added the most to the power of the office, Franklin Roosevelt, was dealt one of his most humiliating defeats when the Court in May 1935 declared unanimously that he lacked the constitutional authority to fire a member of the Federal Trade Commission, conservative William Humphrey. The fired officer sued, and his court challenge was carried on successfully after his death, by the executor of his estate.
Roosevelt, according to historians, was more offended by that ruling than any of the others the Court issued in striking down much of his “New Deal” program to recover from the Great Depression. The insult led him, two years later, to try to “pack” the Court by pushing a plan – rebuffed by Congress — to add six new Justices to the Court.
The 1935 ruling was based on the theory that members of the so-called independent regulatory commissions were insulated by Congress, so that they could not be fired “at will” by the President but could be removed only for a significant cause, such as failing to perform duties.
Conservative academics and activists for generations have challenged the ruling on the theory that it interferes seriously with the constitutional authority of the President to lead the entire Executive Branch of the federal government. That is the so-called “unitary Executive” theory, based on the wording of the Constitution that the powers of that branch are “vested” in one official: the President. That phrase is read literally, to make President and Executive Branch completely overlap.
Since 1887, when Congress created the first federal agency with independent status within the Executive Branch (the Interstate Commerce Commission), the number of such agencies has multiplied greatly. Some of those agencies have immense power – such as the Federal Reserve, which has authority to closely regulate the nation’s money and credit system.
In two recent decisions, in 2000 and 2001, the Supreme Court’s conservative Justices chose not to reconsider the 1935 decision, but continued a process of narrowing its limitation on presidential power to remove officers of those agencies. Two Justices, Neil M. Gorsuch and Clarence Thomas, said the Court should reconsider the precedent at some point. Justice Samuel A. Alito, Jr., is a strong advocate of narrowing the precedent, and Justice Brett M. Kavanaugh was a fervent critic of it when he was serving on a lower federal court.
It would take the votes of four Justices to agree to hear a request to set aside the precedent, and the votes of five to overrule it.
On Wednesday, Acting U.S. Solicitor General Sarah M. Harris, told Congress in a letter that her office – the part of the Justice Department that represents the federal government in the Court – will seek the precedent’s overruling. She was acting under a federal law that requires the Department to notify Congress when the Executive Branch decides it will not enforce an existing federal law. The laws at issue in this instance are the ones that protect independent agency officers from being fired without cause.
Harris wrote that the Humphrey’s Executor decision “prevents the President from adequately supervising principal officers in the Executive Branch….The Department has concluded that those tenure protections are unconstitutional.”
President Trump, since entering office last month, has fired members of several of the supposedly independent regulatory agencies, including the multi-member National Labor Relations Board and Federal Trade Commission. He also has dismissed the single head of the Office of Special Counsel, an officer who protects the rights of federal government employees from retaliation when they act as “whistleblowers” to expose wrongdoing in their agencies.
In each case of a dismissal, Trump acted without finding that the official had failed in their duties, but based solely on his claim of the power to control the Executive Branch so as to assure that all officials support his policy agenda. (President Roosevelt’s firing of William Humphrey at the FTC was based on the same argument: a disagreement over policy.}
Two lawsuits are already moving rapidly through the federal courts as challenges to Trump’s action. One is by Gwynne Wilcox, fired from the Labor Board. Her lawsuit relies directly on the 1935 precedent and on a federal law that permits a President to remove a board member but only for “neglect of duty or malfeasance in office,” and only after notice and hearing.
The other is by Hamilton Dellinger, the fired head of the Office of Special Counsel. He was dismissed by Trump before the end of the first year of a five-year term. A federal law allows the President to dismiss him only for “inefficiency, neglect of duty, or malfeasance in office.”
Either of those cases could be the first to reach an appeals court or the Supreme Court. In Dellinger’s case, a federal appeals court in Washington said a government appeal from a trial court order to protect that official was premature. One of the three judges on the panel, however, commented that he thought it would be difficult for Dellinger to win because of the trend of rulings in the Supreme Court toward greater presidential power to remove officials.
The Justice Department letter to Congress challenged the constitutionality of protection only for officers of multi-member agencies, like the Labor Board, and did not mention Dellinger’s single officer position. The Supreme Court’s most recent opinion on the disputed presidential power did narrow the legal protection for single-head agencies as well as those on multi-member agencies.
The Supreme Court has full discretion to decide whether to reconsider one of its precedents, and there is now a lively debate among legal academics about whether there is currently a majority of the Justices ready to overrule the Humphrey’s Executor precedent. The Court does rely quite heavily upon the Admiinistration in power when it is pondering major constitutional issues.
The Court itself has contributed significantly in modern times to the growth of presidential power, most notably in the decision last July giving Trump and all past and future presidents broad legal immunity to criminal prosecution for their actions in office. That ruling has been subjected to continued heavy criticism. Whether that will make the conservative majority more cautious is an open question.
