President Donald Trump‘s bids to replace a litany of independent agency heads have prompted legal challenges from the Left, which could end up with the Supreme Court revisiting a 90-year-old precedent related to the president’s firing power.
Since Trump returned to the White House in January, the president and his administration have aggressively worked to reshape the executive branch through layoffs and firings of officials ranging from rank-and-file federal workers to agency leaders. Independent agency heads have been a key target, leading to battles in the courtroom, some of which have already landed on the Supreme Court’s doorstep.
Continued lower court rulings against Trump
While nearly a dozen lawsuits have been filed by independent executive agency leaders over their removals, none have yet made it to the Supreme Court on their merits. The Supreme Court has allowed a pair of firings to go forward while litigation continues via the emergency docket, and the justices are currently considering a similar bid to allow a firing to go into effect while that legal battle unfolds.
The Supreme Court issued a stay of two lower court orders regarding the firings of Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. The justices ruled 6-3 that the firings could proceed while the cases are litigated in lower courts, finding the burden to the president of keeping them in place outweighs the harm caused by removing them in the interim.
The ruling was not on the merits of the case, but it did indicate the justices are at least receptive to the president’s argument that he has the authority to remove the officials.
Earlier this month, the Trump administration asked the Supreme Court to allow it to proceed with firing three Democratic-appointed members of the Consumer Product Safety Commission. The high court has yet to rule on the application but could do so in the coming days.
Another pair of bids to fire independent agency heads has also hit recent roadblocks.
Last week, a U.S. district judge ruled the Trump administration must restore Federal Trade Commissioner Rebecca Slaughter, a Democratic appointee, to her role. The ruling was paused by an appeals court panel temporarily on Monday while it hears from both sides on whether to issue a more permanent stay pending appeal. If the appeals court panel declines to issue a stay, that case could make its way to the Supreme Court’s emergency docket.
Another federal judge in Washington, D.C., ordered on Tuesday that two fired Democrat-appointed members of the National Credit Union Administration, Todd Harper and Tanya Otsuka, be reinstated to their positions. The Trump administration has appealed the ruling to the U.S. Court of Appeals for the D.C. Circuit and has requested a stay pending appeal in the district court.
Bid to oust Federal Reserve chair unlikely to succeed
One executive agency head whom Trump has discussed firing but who could be uniquely protected is Federal Reserve Chairman Jerome Powell.
Trump appointed Powell during his first term in 2018, and former President Joe Biden appointed him to another four-year term in 2022. Despite the Fed chairman originally being a Trump appointee, the president has expressed his frustration over Powell’s handling of interest rates. Trump has branded Powell as “Mr. Too Late” and has mused about firing him, but he has said he will not do so.
If Trump attempted to fire Powell, a legal challenge would almost certainly ensue, and the Supreme Court has indicated it would not allow the firing to take effect in the interim.
When the high court allowed the firings of Wilcox and Harris to proceed, the majority of justices noted in their opinion that they would not have come to the same conclusion if the case had been about the removal of Federal Reserve officials.
“The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” the majority wrote.
Powell’s term is set to end in 2026, and Trump told reporters Tuesday that “he’s going to be out pretty soon anyway” as he backed away from previous suggestions he would fire the Federal Reserve chairman.
Supreme Court could soon hear merits of independent agency firings
The Supreme Court’s long-standing precedent on firing independent agency heads in the executive branch goes back to its 1935 decision in Humphrey’s Executor v. United States. The high court ruled at that time that then-President Franklin Roosevelt could not fire an FTC commissioner and that the commissioner could only be fired “for cause,” as a law passed by Congress authorizing the creation of the FTC said.
The 1935 ruling insulated independent agency heads for decades from getting fired by presidents, but Trump’s actions have pushed the limits of the precedent and teed up the high court to revisit it.
When the justices allowed Trump to fire Wilcox and Harris in the interim via the emergency docket order, the majority opinion explicitly stated it was not deciding the merits of the case. The majority opinion said a ruling on the merits is “better left for resolution after full briefing and argument.”
The dissent to the May order, written by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, asserted that the majority’s opinion effectively overruled Humphrey’s “pending our eventual review.”
With the emergency application filed by the Trump administration to allow three CPSC members, Solicitor General D. John Sauer also asked the justices to consider taking up the merits of the case, noting the continued cavalcade of lawsuits over Trump’s firings of independent agency heads.
“Until this Court issues a final decision, each of those agencies will operate under a cloud of uncertainty and will risk legal challenges to any actions that it takes,” Sauer wrote, noting the earlier order allowing Wilcox and Harris to be fired in the interim did not change lower courts’ thinking on the matter.
“This Court should grant certiorari before judgment now, hear argument in the fall, and put a speedy end to the disruption being caused by uncertainty about the scope of Humphrey’s Executor,” the application filed by Sauer said.
TRUMP’S EFFORTS TO END TPS FOR MULTIPLE COUNTRIES TIED UP IN LEGAL BATTLES
Less than a day after a district court called for fired Federal Trade Commissioner Rebecca Slaughter to be reinstated, Sauer wrote a letter to the high court pointing out the lower court’s ruling and claimed it added to the urgency for the justices to hear the merits of the CPSC members case.
The Supreme Court’s emergency docket has been crowded with applications from the Justice Department since Trump returned to office more than six months ago, with little sign the number of applications will slow down soon.