Trump Asks Supreme Court to End Protection of Independent Agencies

The Trump administration has told Congress they will move to ask the Supreme Court to overrule Humphrey's Executor, a 1935 ruling that protects workers in independent agencies from political retribution.

In a letter written by Trump's Acting Solicitor General Sarah Harris, she notified the Congressional Judiciary Committee that the Justice Department (DOJ) is looking to overturn this precedent as they see it as an unconstitutional burden on the president's right to fire federal workers.

This comes at the same time that an employee fired by the Trump administration is suing the president for the "illegal removal" of her from her post.

The suit, brought by Gwynne A. Wilcox, who was fired from her position on the National Labor Relations Board (NLRB), will likely lead to a Supreme Court case and an ultimate ruling on Humphrey's Executor.

She is one of nearly 300 people who have been fired, reassigned, or told they will be laid off by the Trump administration from a swathe of government agencies that are supposed to be protected from firings-at-will by the Executive branch.

Why It Matters

It is currently illegal, under Humphrey's Executor, to fire workers from independent government agencies without cause. While some people say this ruling gets in the way of Executive power, others say it prevents the president from acting like a sovereign or imposing political retribution on workers.

The Trump administration has been firing hundreds of federal employees since taking office and is now seeking to protect itself legally by asking the Supreme Court to overturn the precedent protecting federal workers.

What is Humphrey's Executor?

Humphrey's Executor is a 1935 Supreme Court ruling that determined the independence of federal agencies such as the NLRB, Federal Trade Commission (FTC), Federal Elections Commission, Central Intelligence Agency (CIA), Federal Communications Committee (FCC), National Transportation Safety Board (NTSB) and others.

The case arose during the Franklin Delano Roosevelt (FDR) administration. President Hoover had hired William E. Humphrey as head of the FTC, however, when the presidency was taken over by FDR, he moved to fire Humphrey for his political views.

Humphrey died shortly after being fired, but his estate executor took FDR's administration to court citing the FTC Act which says a person can only be fired due to "inefficiency, neglect of duty, or malfeasance in office," in order to recover Humphrey's lost salary from being fired. The court ruled unanimously in Humphrey's executor's favor and created the precedent that covers all independent government agencies, meaning workers cannot be fired by the president due to their political leanings.

What To Know

Wilcox, from the NLRB, has brought her suit against Trump and Marvin Kaplan, the chair of the NLRB, citing the same precedent: that she cannot be fired unless she is accused of "neglect of duty or malfeasance in office, but for no other cause."

The suit filings for Wilcox, the first Black woman to serve on the board, state: "The President's action against Ms. Wilcox is part of a string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress's power to create independent agencies like the Board.

"Although Ms. Wilcox has no desire to aid the President in establishing a test case, she is also cognizant of the fact that, if no challenge is made, the President will have effectively succeeded in rendering the NLRA's protections—and, by extension, that of other independent agencies—nugatory."

Meanwhile Acting Solicitor General Harris' letter to Congress states: "Specifically, the Department has determined that the statutory tenure protections for members of the Federal Trade Commission (FTC), 15 U.S.C. 41, for members of the National Labor Relations Board (NLRB), 29 U.S.C. 153(a), and for members of the Consumer Protections Safety Commission (CPSC), 15 U.S.C 2053 (a), are unconstitutional."

Wilcox's suit is one of many lawsuits being brought against the president for firings.

What People Are Saying

Wilcox vs Donald J. Trump and Marvin E. Kaplan: "The President's firing of Ms. Wilcox by late-night email was a blatant violation of the National Labor Relations Act...The President's removal of Ms. Wilcox without even purporting to identify any neglect of duty or malfeasance, and without notice or a hearing defies ninety years of Supreme Court precedent that has ensured the independence of critical government agencies like the Federal Reserve...As a rightful member of the Board, Ms. Wilcox accordingly seeks declaratory and injunctive relief to remedy the President's unlawful action, ensure that the Board can resume its important work, and restore the Board's congressionally mandated independence."

Sarah Harris in her letter to the Judiciary Committee: "The Department intends to urge the Supreme Court to overrule [Humphey's Executor], which prevents the President from adequately supervising principal officers in the Executive branch who supervise the laws on the President's behalf, and which has already been severely eroded by recent Supreme Court decisions."

What Happens Next

Wilcox's case will likely end up in front of the Supreme Court following appeals. If the Supreme Court rules in favor of the president, then they will overturn their 1935 ruling, and make it easier for the President to fire government workers from independent agencies at will.

Two Conservative justices on the court, Clarence Thomas and Neil Gorsuch have said they want to repeal this law. In a ruling over removing the independence of the Consumer Financial Protection Bureau (CFPB) four years ago, the justices said this precedent is a "direct threat to our constitutional structure and, as a result, the liberty of the American people."

Thomas made his thoughts clear, saying: "In a future case, I would repudiate what is left of this erroneous precedent."