Justices May Facilitate President’s Removal of Agency Members

Whether former Federal Trade Commission (FTC) Commissioner Rebecca Kelly Slaughter could be constitutionally fired without cause by the president was before the U.S. Supreme Court in oral arguments on Dec. 8. The president’s authority to remove other independent agency members at will, including those at the National Labor Relations Board (NLRB) also was considered. The decision, one of the biggest before the court this term, likely also will impact whether U.S. Equal Employment Opportunity Commission (EEOC) commissioners may be removed without cause.

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An agency’s voting members play a monumental role in steering an agency’s focus. 

At issue in the case (Trump v. Slaughter) before the Supreme Court is whether Congress can, through statute, limit the president’s ability to remove officials serving on bipartisan independent boards housed within the executive branch.

Recent and Old Precedent

The oral arguments in Slaughter came on the heels of a Dec. 5 decision by the D.C. Court of Appeals, which ruled that the removal protections for the members of the NLRB and the Merit Systems Protection Board were unconstitutional. The D.C. Court of Appeals found that these positions did not fall within Humphrey’s Executor v. United States, because their functions are largely executive in nature. In the 90-year-old decision of Humphrey’s Executor, the Supreme Court upheld the constitutionality of the FTC Act’s language limiting the president’s removal power to removal for cause only.

However, in oral arguments in Slaughter, U.S. Department of Justice Solicitor General D. John Sauer, representing the Trump administration, urged the Supreme Court to “overrule Humphrey’s Executor explicitly and restore the separation of powers to our government.”

He said the court had issued multiple decisions holding that the president’s power to remove and supervise those who exercise executive power on the president’s behalf was settled law as far back as the First Congress.

Humphrey’s Executor “continues to tempt Congress to erect at the heart of our government a headless fourth branch insulated from political accountability and democratic control,” Sauer said.

Many justices were receptive to his arguments. 

“Humphrey’s Executor is just a dried husk of whatever people used to think it was,” Chief Justice John Roberts said. “And yet it seems to be your primary authority,” he remarked to Amit Agarwal, an attorney with Protect Democracy in Washington, D.C.

Agarwal, who is challenging the president’s authority to remove independent agency commissioners without cause, argued that the president’s constitutional duty to execute the law did not give him the power to violate that law with impunity. “Multi-member commissions with members enjoying some kind of removal protections have been part of our story since 1790,” Agarwal said. 

So if the Trump administration is right, Agarwal said, then “all three branches of government have been wrong from the start. Congress and prior presidents have been wrong to jointly create early founding-era commissions and more than two dozen traditional independent agencies since 1887. And this court was wrong to repeatedly bless those laws and to unanimously uphold the exact same removal provision at issue here in Humphrey’s Executor almost a century ago.”

In Sauer’s view, however, the alteration of the structure of the government was ushered in by Humphrey’s Executor. “Congress kind of took Humphrey’s and ran with it in the building of the modern administrative state and the proliferation of independent agencies that are insulated from democratic control,” he said.

Justice Sonia Sotomayor countered, “Independent agencies have been around since the founding.”

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An Exception for the Federal Reserve?

While many justices, nonetheless, were receptive to Sauer’s arguments, Justice Brett Kavanaugh expressed concern about whether members of the Federal Reserve Board of Governors could be fired without cause. In January, the Supreme Court will hear oral arguments in a case (Trump v. Cook) involving whether efforts by President Donald Trump to remove Lisa Cook from being a member of the Federal Reserve are lawful.

Sauer said that “the Federal Reserve is a quasi-private uniquely structured entity that follows a distinct historical tradition.” He added that the Federal Reserve has been “described as sui generis” or unique. “Any issues of removal restrictions as a member of the Federal Reserve would raise their own set of unique distinct issues.”

Not so with the NLRB, according to Sauer. Justice Elena Kagan noted that the current version of the NLRB and other agencies “goes down,” if Trump prevails, “notwithstanding that they do all their work or almost all their work in judicial-type proceedings.”

“Yeah,” Sauer said. Later, he added, “We think the text of the Constitution confers the executive power, all of it, on the president.”

However, Kavanaugh reiterated there might be two exceptions, one, the Federal Reserve based on history, tradition, and function. Secondly, there might be an exception for non-Article III courts, such as the Court of Federal Claims, the Tax Court, and the D.C. local courts.

Sauer said this was something the Supreme Court might consider.