Legislative lowdown: Supreme Court may dismantle job protections for independent agency heads

For 90 years, Supreme Court precedent has held that presidents can’t fire independent heads of federal agencies without cause.

That precedent was tested when President Donald Trump fired a number of federal officials after taking office in January, including Gwynne Wilcox, a member and chair of the National Labor Relations Board.

The Supreme Court now looks likely to overturn the 90-year precedent and allow the president to fire agency heads at-will. The decision, which is expected next year, is likely to affect a number of federal agencies, including those tasked with protecting US workers

What is Humphrey’s Executor, and why is it being challenged? The precedent in question dates back to a 1935 court case, Humphrey’s Executor v. the United States, which hinged on whether President Franklin Delano Roosevelt could lawfully fire a member of the Federal Trade Commission (FTC).

Roosevelt sought to oust a conservative FTC member, William E. Humphrey, over his opposition to sweeping New Deal programs intended to lift the US out of poverty. The Supreme Court ruled that firing Humphrey solely over policy disagreements was unconstitutional, concluding that “illimitable power of removal is not possessed by the President.”

Today’s conservative Supreme Court members have expressed skepticism toward such checks on presidential power for a number of years, but a case concerning Trump’s decision to fire Rebecca Slaughter, a Democratic member of the FTC, brought these concerns to the fore.

Slaughter, who was fired in March, sued President Trump on grounds he violated an FTC statute that says presidents can only remove commissioners for “inefficiency, neglect of duty, or malfeasance in office.” In a brief submitted to the high court, Slaughter expressed doubt that the Trump administration had shown “special justification for overruling a 90-year-old line of precedent on which much of modern governance is based,” referring to the Humphrey’s Executor case.

Conservative members of the Supreme Court, however, seemed open to overturning Humphrey’s when they heard oral arguments for the case on Dec. 9.

“I think broad delegations to unaccountable independent agencies raise enormous constitutional and real world problems for individual liberty,” Justice Brett Kavanaugh said during the arguments. Chief Justice John Roberts called Humphrey’s Executor “a dried husk of whatever people used to think it was,” arguing the 1935 decision was made at a time when the FTC had very little executive power.

How expanding presidential power could affect labor and employment agencies. Should the Supreme Court side with Trump, the decision could affect leadership at a number of agencies tasked with protecting workers—notably the National Labor Relations Board and the Equal Employment Opportunity Commission (EEOC).

Shakeups at the NLRB and EEOC have hamstrung the agencies’ abilities to conduct business this year. The EEOC lacked a three-person quorum up until this past October, and was thus unable to approve certain types of litigation, as well as issue official regulations, guidance, or enforcement plans. The NLRB still doesn’t have a quorum, and has thus been unable to deliver on many aspects of Trump’s labor agenda.

A case concerning Gwynne Wilcox, an NLRB member who was fired by Trump in January, provides some additional insight into how the Supreme Court may decide this case. Wilcox sued the president on similar grounds to Slaughter, arguing that his decision to fire her without cause was illegal.

Wilcox was reinstated twice to her position—first by a federal district court, and then by the DC Circuit Court of Appeals—but the Supreme Court ultimately granted a request for an emergency administrative stay of her reinstatement, allowing Trump to keep her off the NLRB while it considered her case. In an unsigned opinion, members of the court wrote that this stay “reflects our judgment that the Government is likely to show that both the NLRB and the MSPB exercise considerable executive power,” referring to both Wilcox and another member of the Merit Systems Protection Board who was fired by the president.