Yesterday, the Supreme Court overruled its 91-year old, New Deal-era decision in Humphrey’s Executor v. United States, expanding the President’s authority over those many independent boards and commissions that Congress has sought to protect from political influence by providing that their members can only be removed by the President for cause. The SCOTUS blog notes:

By a vote of 6-3, the justices struck down a federal law that bars the president from firing members of the Federal Trade Commission except in cases of “inefficiency, neglect of duty, or malfeasance in office.” That law, a majority of the justices ruled, violates the constitutional separation of powers between the three branches of government. And in reaching that decision, the court overruled its 91-year-old decision in Humphrey’s Executor v. United States, which had upheld the law at the center of the dispute.

More broadly, Monday’s decision was a major victory for proponents of the “unitary executive” theory – the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers.

Writing for the majority, Chief Justice John Roberts contended that “the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”

Justice Sonia Sotomayor penned a 49-page dissent that was joined by Justices Elena Kagan and Ketanji Brown Jackson. “Today,” she wrote, “the Court discards” the “democratic regime” created by the Constitution “in favor of one that distorts the structure of Government to fit the majority’s theory of unitary, total executive control. The result,” she concluded, “is a President who emerges with far greater power than ever before.”

The case arose following the Trump Administration’s attempt to remove Rebecca Slaughter, who was appointed during the first Trump Administration to fill one of the Democratic seats on the five-member Federal Trade Commission. Slaughter challenged her firing on the basis of Humphrey’s Executor v. United States, which addressed President Roosevelt’s attempt to fire William Humphrey as a commissioner of the FTC on policy grounds, when the FTC’s authorizing statute only allowed a president to remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office.” A unanimous Supreme Court ruled in 1935 that the Federal Trade Commission Act was constitutional and that Humphrey’s dismissal on policy grounds was unjustified, paving the way for independent boards and commissions in the federal government to operate in a manner that was at least somewhat protected from political influence for the next 90 years.

It is certainly no surprise that we ended up here. As this CNN article notes: “For more than 40 years, since his service as a young Reagan administration lawyer, Chief Justice John Roberts has pressed for an exceptionally powerful US president, one who could fire the heads of independent agencies at any time.” As John Jenkins noted in this blog back in February of last year, many expected at the beginning of the second Trump Administration that SCOTUS would be open to revisiting, and ultimately overruling, Humphrey’s Executor.

– Dave Lynn