Trump Agency Firing Cases March Toward Receptive Supreme Court

President Donald Trump’s unprecedented firings of agency board members spawned legal challenges on a collision course with a US Supreme Court that’s signaled its willingness to further enhance the president’s removal power.

The strongest indicators of the high court’s receptiveness to Trump’s assertions of authority reside in a trilogy of decisions incrementally weakening agency leadership’s job protections, as well as its 2024 decision stemming from one of Trump’s federal indictments that embraced a broad view of presidential immunity, legal scholars said.

The Supreme Court’s next case on presidential removal powers could be the death knell for statutory shields against at-will dismissal for independent agency panel members, which Congress first created in 1887.

Those safeguards are one of the remaining buffers protecting regulatory agencies from the political whims of the White House.

Trump claimed dominion over independent agencies, including how they interpret the law, develop regulations, and spend funds. The power to fire noncompliant officials would allow Trump to weed out—or make subservient—those who might otherwise resist.

“Agency leaders would have the Sword of Damocles hanging over their heads,” said Christine Chabot, a Marquette University law professor.

But the justices could effectively give Trump that power without a decision categorically rejecting for-cause job protections, scholars said. That route would allow the Supreme Court to avoid the elephant in the room when it comes to unfettered removal authority: potentially handing over control of the country’s monetary policy to the White House.

Incremental Expansion

The key Supreme Court precedent in the litigation over Trump firings at the National Labor Relations Board, Merit Systems Protection Board, and Federal Labor Relations Authority is 1935’s Humphrey’s Executor v. US, which upheld Federal Trade Commission members’ firing shields.

The high court weakened Humphrey’s Executor in 2010’s Free Enterprise Fund v. PCAO, 2020’s Seila Law LLC v. CFPB, and 2021’s Collins v. Yellen.

Seila Law diminished Humphrey’s Executor by calling it an exception to the president’s removal authority as characterized in Myers v. US, a 1926 decision penned by former president and then-Chief Justice William Howard Taft. Congress can only protect agency board members from at-will terminations if those officials perform quasi-judicial or quasi-legislative functions—and don’t exercise executive power, according to Seila Law.

The Trump administration has put Seila Law at the center of its legal defense to the firings at the NLRB, MSPB, and FLRA, arguing that those agencies’ board members fall outside of the Humphrey’s Executor exception.

But the court didn’t go far enough in Seila Law for two justices. Although the majority “repudiated almost every aspect of Humphrey’s Executor,” it should have overturned it, Justice Clarence Thomas wrote in a concurring opinion joined by Justice Neil Gorsuch.

Presidential Power

Justice Elena Kagan’s Seila Law dissent suggests for-cause job protections could survive if the court views presidents’ power to remove as stemming from their constitutional duty to ensure laws are faithfully executed, said Ilan Wurman, a University of Minnesota law professor.

Although the Constitution sets forth the presidential power to appoint officials, it says nothing about removing them.

But the Supreme Court’s decision on presidential immunity does seem to find removal authority in the president’s executive power.

The opinion in Trump v. US—which all six of the court’s conservative justices joined—said that Congress can’t act on, and courts can’t examine, actions arising from the president’s core constitutional authority, including removal power.

“There’s a lot of reasons to think Humphrey’s is on its last legs,” said Jane Manners, a law professor and legal historian at Temple University.

Unitary Executive

The view that Article II of the Constitution grants executive power to the president alone fuels both the current court’s removal jurisprudence and the unitary executive theory, legal scholars said.

The unitary executive theory’s rise in conservative legal circles was sparked by the Reagan administration’s Justice Department attorneys responding to a series of special counsel investigations into Reagan administration activities. The matters investigated by the special counsel included the Iran-Contra affair and allegations that DOJ lawyers obstructed congressional probes of the Environmental Protection Agency when it was led by Anne Gorsuch Burford, Justice Neil Gorsuch’s mother.

Chief Justice John Roberts and Justice Samuel Alito were both DOJ lawyers during that “searing experience,” said John Yoo, a law professor at the University of California-Berkeley who advanced the unitary executive theory as a DOJ lawyer during the George W. Bush administration.

“They were from the world where they attributed a lot of the excesses of the special counsel as violating Article II,” Yoo said. “The 80s special counsel experience really scarred them.”

Roberts authored the majority opinions in Trump v. US, Seila Law, and Free Enterprise Fund; Alito penned the court’s opinion in Collins.

The Fed Problem

While prior rulings suggest that the Supreme Court will kill Humphrey’s Executor if given the chance, legal scholars also raised the possibility that the court continues its incremental approach on removal power.

Roberts was careful in Seila Law to say that the FTC commissioners in 1935 could have removal protections because they didn’t exercise executive power, said Steven Calabresi, a law professor at Northwestern University.

The chief justice could lead a majority that allows Trump’s NLRB firing on the grounds that board members exercise executive power, and leave Humphrey’s Executor in its current form, said Calabresi, a leading proponent of the unitary executive theory.

Endorsing Trump’s removals based on agency officials’ executive power would let the court avoid explicitly exposing Federal Reserve Board members to at-will termination—otherwise the court would face the difficult task of crafting a Fed exception for a post-Humphrey’s Executor landscape to protect it.

For his part, Trump signaled support for the Fed’s autonomy by excluding it from his executive order on control of independent agencies.

But White House control of other financial regulatory agencies could significantly destabilize markets even if the Fed remains independent, said Victoria Nourse, a professor at Georgetown Law.

“It’s not just about the Fed,” she said.