Sometime this week, just days before America celebrates the 250th anniversary of ending its misery under the cruel domination of the British Crown, the Supreme Court is very likely to take a constitutional step toward giving U.S. Presidents a nearly imperial power.
Acting on an ambition that former White House lawyer John G. Roberts, Jr., has had for more than four decades, the Court – now led by Roberts as Chief Justice — appears ready to strip scores of federal boards and commissions of their independence from presidential control.
Tomorrow and on at least one other day this week before beginning its summer recess, the Court is expected to release decisions in the final eight cases heard this term. Two of those rulings are expected to concern tests of presidential power to fire officials who lead federal agencies for no reason at all, or for any policy disagreement.
That issue has been debated since America’s beginning. Many in the founding generation were influenced by the view of the French baron and political philosopher, Montesquieu, that human liberty cannot survive under a government in which power is concentrated, as with English and European kings and queens.
For several years the Supreme Court has created a strong impression, through hints and more reliable signs, that it is set to overrule a 91-year-old constitutional precedent that took away the President’s unchecked power to fire any official within the Executive Branch of the federal government, including the leaders of scores of agencies set up by Congress to be independent from White House influence.
That threat has been strongly reinforced by the career of John Roberts. In 1983, when he was an attorney in President Ronald Reagan’s White House, Roberts circulated an internal memo saying: “I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies.” He was referring to an official’s planned testimony before Congress that would argue that “the time may be right to reconsider the existence of such entities, and take action to bring them back within the Executive Branch.”
As Chief Justice, Roberts has consistently opposed restrictions on the President’s power to fire officials in the Executive Branch, notably in his 2010 opinion in a case nullifying a federal law that required a good cause to fire officers of a federal board that regulates accounting firms that audit the books of securities firms. Since then, Roberts has led the Court in striking down such limits on presidential firings at other agencies.
While the Constitution gives the President the authority to appoint officials of those agencies, with approval by the Senate, the basic document says nothing about the power to remove those officials, other than by the formal process of impeachment, which is rarely used.
When the Court issues the rulings expected this week on presidential firings, it will be judging what to do about the 1935 ruling in the case of Humphrey’s Executor v. United States. In that case, the Court unanimously upheld a law barring removal of members of the Federal Trade Commission unless the President had a good reason, such as that the official was failing to perform duties.
That ruling, nullifying President Franklin D. Roosevelt’s firing of an FTC commissioner, was regarded by Roosevelt’s aides at the time as the most serious threat to his powers as President. In fact, his staff said it was that specific ruling that led Roosevelt to propose – without success – to expand the number of Supreme Court Justices to 15.
At the time of the Humphrey’s Executor decision, there were about a dozen independent agencies within the federal Executive Branch. Revival now of a presidential power to remove such officials without having any reason for doing so could apply to as many as 130 federal agencies.
If that removal power now becomes available to President Trump, it would give him added power to enforce a February 2025 Executive Order that requires all of those agencies to coordinate their actions with the White House, to achieve “consistency with the President’s policies and priorities.” Under that mandate, only the interpretation of federal laws embraced by the President can guide the agencies’ actions.
One highly important independent agency, the Federal Reserve Board, is not covered by that Executive Order. Even so, Trump has attempted to fire members of the Fed’s governing board. That agency’s independence, too, is now at issue before the Court, but there have been indications that the Justices might except the Fed from a new ruling freeing the President to dismiss independent agency officials without cause.
One of the two cases awaiting decision involves a Trump firing at the Federal Trade Commission. The other involves an attempted firing at the Federal Reserve. The Court has discretion to treat agencies differently, if it can find significant differences in the way they have been created and in the official functions that they perform. In recent preliminary actions, the Court has shown some sensitivity to the central role of the Federal Reserve in managing the nation’s money and credit, and to the claim that the Fed needs independence from political pressure to act in those financial fields.
When the Court rules on those cases, a dominant factor will be the view it takes today of an important event in early American history that goes by the (probably misleading) name of “the Decision of 1789.” The name refers not to a formal decision by the government, but to an intense debate and a series of votes in Congress’s House of Representatives over more than a month that year, as it began creating departments to run the new government established by the Constitution.
Whatever the meaning of the “Decision” at that time, historians and law professors still debate vigorously what it means, while Presidents have generally interpreted it broadly, claiming that the power to remove – without limits — is essential to the functioning of the office and to its duty to supervise the agencies.
The most sweeping claim came from a former President, William Howard Taft, when he was serving as the nation’s Chief Justice in 1926. Writing for a 6-to-3 majority in the case of Myers v. United States, Taft declared: “The Court finds that the action of the First Congress in 1789…was a clean-cut and deliberate construction of the Constitution as vesting in the President alone the power to remove officers, inferior as well as superior.”
That decision upheld President Woodrow Wilson’s firing of a postmaster in Oregon, even though a law passed in 1876 had required that such an official could only be removed with the approval of the Senate.
That interpretation of the Constitution, however, lasted for less than a decade. The Court’s 1935 decision in the Humphrey’s Executor case did not specifically overrule the Myers decision, but narrowed its scope, saying that it only protected the President’s power to fire at will an officer specifically within the Executive Branch, like a postmaster. It dismissed most of the 243 pages of opinions in the Myers case as unnecessary to the narrow ruling about postmasters.
The sole opinion in Humphrey’s Executor was a mere 14 pages long, and largely dismissed the significance of what Congress had done in 1789 by referring to it as “the so-called ‘decision of 1789.’“ In the end, the Court upheld the Federal Trade Commission Act of 1914 and its provision that the President could only fire a member for failing to perform the commission’s duties, which it described as not really executive in nature but “quasi-legislative” and “quasi-judicial.”
Chief Justice Roberts, in his opinions for the Court on this constitutional question, has depended heavily upon the Myers decision and on the “Decision of 1789.” There is no reason to expect that he would abandon either of them now that those authorities are directly – and probably unavoidably – at issue.
Among next week’s other awaited rulings are a test of another Trump Executive Order, threatening to take away the U.S. citizenship of children born to parents who are illegally or temporarily visiting the U.S., even though the Constitution explicitly confers citizenship on those children at birth.
Also expected are decisions in two cases on the legality of banning transgender girls from participating in girls’ sports; and two cases on federal elections, one involving restrictions on mail-in voting and another involving campaign spending restrictions on political parties.
