The Supreme Court’s deep commitment to bolstering presidential power reached a new and crucial point this week.  Over three Justices’ dissents, it assigned itself the historic task of reconsidering – and probably overruling – one of its most important constitutional checks on the nation’s Chief Executive.

In actions taken late Monday, none drawing much media attention, it ordered a hearing in December on the fate of a 90-year-old precedent that has blocked presidents from firing government officials that Congress has long insisted be kept on their jobs unless they failed in their duties.

The precedent, a unanimous decision in 1935 in the case of Humphrey’s Executor v. United States, blocked President Franklin Roosevelt from firing a member of an independent regulatory agency – the Federal Trade Commission – solely because of a policy disagreement.  The ruling has meant since then that presidents could only discharge such an official for serious failure in performance.

Congress has repeatedly put up a sturdy barrier to such firings in order to try to keep political influence out of the work of government agencies that perform tasks that require expertise in overseeing vast sectors of American life, especially in business.  A long list of agencies’ top officials now have that protection.

President Trump, in eight months in his second term, has repeatedly ignored that protection and fired commissioners at multiple agencies, usually without finding any fault with their work.  He and Administration lawyers have argued that he needs that power in order to manage the entire Executive Branch and to ensure that his policy agendas are carried out.  He claims that the voters gave him that mandate in electing him last year.

The Supreme Court, by repeated 6-to-3 votes, has temporarily upheld firings of top agency officials.  They did so again Monday, allowing Trump to discharge Rebecca Kelly Slaughter, the last remaining Democratic member of the Federal Trade Commission – the same agency involved in the 1935 case.  The majority appeared to have picked out that case deliberately, because it, too, involves the FTC and because it also had before it similar cases involving firings at other agencies and it denied review of those in separate orders Monday.

The actions by the Court’s conservative majority have left little doubt that the Humphrey’s Executor decision is all but doomed to be cast aside. In fact, in one of the cases acted upon this year, the dissenting Justices said that the majority “has all but overturned” that ruling already.

In an unsigned order Monday evening, the Court told lawyers to file written arguments on two specific questions:

• Does the law protecting FTC members from being fired without cause violate the constitutional separation of powers between the three branches of the federal government and, if it does, should the Court overrule the 1935 precedent?
• Does a federal court have the legal power to prevent the President from removing a person from public office?

The first of those questions appears to pose a direct test of presidential power under the fundamental constitutional principle that each of the three branches must respect each other’s domains.  That could lead the Court to spell out some broad new principles on creation of government agencies, and how the branches divide up that responsibility, if they share it at all.

The fact that the Court set up the test of the 1935 precedent does not necessarily mean that in the end it will overrule it.  It has the option of narrowing the scope of that ruling without erasing it entirely from the law books.  However, it has already commented, in earlier orders involving Trump’s firing, that he was likely to win when a full-scale test is resolved.

The section question the Court posed Monday is more opaque, but appears to be a rather technical legal test of which authority a federal judge can exercise in cases of removal from office.  That question might become more important if the Court were to decide to allow judges some role in overseeing presidential firings.  That has the appearance of being a less confrontational issue, and might have been added to get the votes of Justices who could be somewhat hesitant to flatly overrule such an important constitutional precedent.  The Court has drawn a great deal of criticism for overruling its 1973 decision in Roe v. Wade that created a woman’s constitutional right to end pregnancy by abortion.

Confronting the fate of the 1935 precedent now could give the outcome in the case of Trump v. Slaughter a top rank in historic significance similar to last year’s ruling by the Court in the case of Trump v. United States, creating broad precedential immunity for past and future Presidents for crimes committed while in office.  (Trump has been charged multiple times with crimes, but was convicted in only one case.  That guilty verdict is still under review in lower courts.)

The Court, in another victory for Trump last year, decided that state governments could not keep him off of their 2024 presidential election ballots for his role in the January 6, 2021, mob attack on the U.S. Capitol when he was contesting his defeat in the 2020 election.

The Court opens a new term October 6.  The Court has not yet released its schedule of hearings for its December sitting in the weeks of December 1 and 8.  Another important test of presidential power will be heard by the Justices on November 8 in two combined cases in which lower federal courts have ruled that Trump does not have the authority for his multiple orders imposing tariffs – charges on imports of goods coming from other nations.