The Trump Administration, in its boldest legal maneuver so far, asked the Supreme Court on Wednesday to settle in the next few months the long-standing constitutional dispute over how much power Presidents have to run the national government.

The issue, still in some doubt after 237 years of the Constitution’s history, is this: did the Founders create a “unitary Executive” that empowers the President, acting alone, to manage the entire national branch that enforces national laws?

Administration lawyers asked the Court to schedule a special sitting for a hearing in May, and to issue a final decision before the Justices recess for the summer. The Court has the power to do that, but it also can choose to take lesser action, allowing this dispute to play out first in lower courts.

Among the many constitutional disputes stirred up by President Trump’s initiatives early in his second term, this is the first in which Administration lawyers have sought a final Supreme Court decision within a matter of weeks. That is a strong indication of how important the underlying dispute is.

The “unitary Executive theory” appears nowhere in the Constitution, but those who embrace it trace it to just a single sentence at the opening of Article II: “The Executive Power shall be vested in a President of the United States” (the so-called “Vesting Clause”). In its most expansive form, the concept broadly contradicts the constitutional structure of “checks and balances” among the three federal branches, so that Congress and the federal courts have only limited power to curb presidential authority.

It takes its fullest form in embracing virtually unchecked presidential power to remove any government official in any job in the Executive Branch, even if that official has been formally approved by the Senate and if even Congress has barred the President from firing that official “at will” – that is, for any reason or no reason at all.

That is the form that the Trump Administration is asking the Supreme Court to uphold in the new appeal in a case that probably will become known in history as Trump v. Wilcox; a companion case is titled Bessent v. Harris.

The fired officials, both of whom had been reinstated by lower federal courts, are Gwynne A. Wilcox, fired by Trump from the National Labor Relations Board, and Cathy A. Harris, fired from the Merit Systems Protection Board. Both cases involve congressional mandates that board members cannot be fired at will, but only for a significant cause, such as failure to perform their duties. Trump ousted them without cause, insisting that he had full constitutional power to do so.

The two agencies involved in the combined new appeal are among many federal boards or commissions that Congress intended to have significant independence from presidential control, in order to allow them to deal with highly specialized issues of government regulation. Such agencies have existed since 1887.

The NLRB, created in 1935, is the five-member federal agency that enforces federal laws requiring fair employment practices in private industry, especially involving the right to join a labor union and act collectively to achieve and protect workplace rights. The MSPB, created in 1978, is the three-member agency that enforces the civil service rights of employees of the federal government.

The “unitary Executive theory” has been debated in American government since the first Congress, which set up the first departments to carry out the nation’s laws. In a decision in 1926, in the case of Myers v. United States, upholding the President’s unchecked power to fire a postmaster, the Supreme Court first applied a version of the theory. One legal scholar has called the Myers decision the first one in history “to invalidate a congressional statute on the grounds that it violated an inherent Article II power of the president.”

But nine years later, the Supreme Court unanimously narrowed the scope of the Myers precedent, finding that President Franklin Roosevelt did not have unchecked power to fire a member of the Federal Trade Commission. That 1935 decision, in Humphrey’s Executor v. United States, cast serious doubt on the sweep of the theory but did not repudiate it entirely.

The “unitary Executive theory” came back into vogue in the 1970s, when conservative legal scholars and activists began promoting it anew. It got a firm endorsement in 1988, when then-Justice Antonin Scalia dissented by himself when the Supreme Court in the case of Morrison v. Olson upheld a federal law that created a special federal criminal law investigator who was protected from firing without cause.

The modern Supreme Court, especially the Court since John Roberts became Chief Justice, has expanded significantly the power of the President to fire officials in some kinds of federal agencies, and has criticized the Humphrey’s Executor precedent, although it has never explicitly overruled it.

In its new appeal to the Court, Trump Administration lawyers argued that the Court could embrace a broad power in the presidency to fire Executive Branch officials without the need to overrule the 1935 precedent. But the constitutional arguments put forward are sweeping indeed, and would – if accepted by the Court – leave very few if any federal officers protected from firing at the President’s pleasure.

The appeal asked the Court to act immediately to put on hold temporarily the lower court rulings that reinstated the two members of the NLRB and MSPB, pending further action in lower courts.  But, for the first time in any of their recent appeals for action by the Supreme Court, their filing Wednesday went further and asked the Justices to grant full-dress review of the core constitutional issue at stake.

The filing argued: “The scope of the President’s removal power is a fundamental question of constitutional law that has been thoroughly discussed in this Court in the lowers courts, and in the academy….The harms of further delay…outweigh the benefits.”

It goes on to suggest that the Court order faster-than-usual written legal briefs, arrange to hold a hearing in May (a month in which the Court rarely hears cases), and decide the case in the current term, which probably will run through late June or early July. If the Court opts to let this controversy develop further in lower courts, it might not be settled until sometime in 2026, the filing said.

Ordinarily, it would take the votes of only four of the nine Justices to grant review of a case following the normal paths through the courts, but it would take the votes of five to put the lower court decisions on hold pending full Court review and probably that same minimum number to set the case for speedy review during this term.
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UPDATE:

Shortly after the Administration appeal was filed, Chief Justice Roberts put on hold temporarily the lower court orders reinstating the two officials. That was an action he could take on his own, since it will be in effect only until the Court can act further. Lawyers for the fired officials were told to file responses by next Tuesday afternoon. After that, Roberts probably will share consideration with his eight colleagues.