WASHINGTON (AP) — The Trump administration’s push to expand control over independent federal agencies comes before a sympathetic Supreme Court that could overturn a 90-year-old decision limiting when presidents can fire board members.
Lawyers for the administration are defending President Donald Trump’s decision to fire Federal Trade Commission member Rebecca Slaughter without cause and calling on the court to jettison the unanimous 1935 decision in Humphrey’s Executor.
Arguments are taking place Monday.
The court’s six conservative justices already have signaled strong support for the administration’s position, over the objection of their three liberal colleagues, by allowing Slaughter and the board members of other agencies to be removed from their jobs even as their legal challenges continue.
Members of the National Labor Relations Board, the Merit Systems Protection Board and the Consumer Product Safety Commission also have been fired by Trump.
The only officials who have so far survived efforts to remove them are Lisa Cook, a Federal Reserve governor, and Shira Perlmutter, a copyright official with the Library of Congress. The court has suggested that it will view the Fed differently from other independent agencies, and Trump has said he wants her out because of allegations of mortgage fraud. Cook says she did nothing wrong.
A second question in the Slaughter case could affect Cook. Even if a firing turns out to be illegal, the court wants to decide whether judges have the power to reinstate someone.
Justice Neil Gorsuch wrote earlier this year that fired employees who win in court can likely get back pay, but not reinstatement.
That might affect Cook’s ability to remain in her job. The justices have seemed wary about the economic uncertainty that might result if Trump can fire the leaders of the central bank. The court will hear separate arguments in January about whether Cook can remain in her job as her court challenge proceeds.
Chief Justice John Roberts has written a series of opinions dating back to 2010 that have steadily whittled away at laws restricting the president’s ability to fire people.
In 2020, Roberts wrote for the court that “the President’s removal power is the rule, not the exception” in a decision upholding Trump’s firing of the head of the Consumer Financial Protection Bureau despite job protections similar to those upheld in Humphrey’s case.
In the 2024 immunity decision that spared Trump from being prosecuted for his efforts to overturn the 2020 election results, Roberts included the power to fire among the president’s “conclusive and preclusive” powers that Congress lacks the authority to restrict.
The court also was dealing with an FTC member who was fired, by President Franklin Roosevelt in 1935, who preferred his own choice at an agency that would have a lot to say about the New Deal.
William Humphrey refused Roosevelt’s request for his resignation. After Humphrey died the next year, the person charged with administering his estate, Humphrey’s executor, sued for back pay.
The justices unanimously upheld the law establishing the FTC and limiting the president to removing a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.”
