Humphrey's Executor: SCOTUS weighs Trump's power to fire
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The Supreme Court in Washington, DC, on Nov. 4. Photo: Pete Kiehart/Bloomberg via Getty Images
The Supreme Court will hear arguments Monday on President Trump's firing of a Democratic Federal Trade Commissioner in a case that could dramatically inflate the president's power to reshape the government.
The big picture: At stake is Humphrey's Executor, the 90-year-old precedent that protects independent agency heads from being fired at will. Ousted FTC Commissioner Rebecca Slaughter warned that overturning it "would profoundly destabilize institutions" key to American governance.
Between the lines: The case arrives at the Supreme Court as the precedent hangs by a thread.
- Over the past decade, the Supreme Court has weakened Humphrey's Executor, ruling in 2020 and 2021 that single-director agencies cannot shield their leaders from presidential removal.
- This year, the court greenlit Trump's removal of members from multimember boards like the National Labor Relations Board.
Context: Trump moved to fire both Slaughter and fellow Democratic FTC Commissioner Alvaro Bedoya earlier this year.
- In an email to Bedoya reviewed by Axios, an official writing on behalf of the president said Bedoya's "continued service on the FTC is inconsistent with my Administration's policies."
State of play: A federal judge blocked Slaughter's removal in July, a decision upheld by an appeals court in September.
- But the Supreme Court's conservative majority intervened, using its emergency docket to let Trump fire Slaughter while it considered his authority over independent agencies.
Friction point: "Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars," Justice Elena Kagan wrote in her dissent.
- "Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation's separation of powers."
Read on for more about Humphrey's Executor and why the Trump administration wants it tossed:
What is Humphrey's Executor?
Zoom out: In 1935, the Supreme Court unanimously ruled that Congress had the authority to limit the president's ability to fire independent agency heads for cause.
- That precedent formed the foundation of the administrative state. It strengthened independent federal agencies by insulating their commissioners from presidential control and political retribution.
Flashback: The case considered removing a commissioner from the very same agency before the court Monday: the FTC.
- Former President Franklin D. Roosevelt asked FTC Commissioner William Humphrey for his resignation without a specific reason, saying, "I do not feel that your mind and my mind go along together on either the policies or the administering of the" FTC.
- When Humphrey refused, Roosevelt tried to remove him from office. Federal law says the president can move commissioners — but for "inefficiency, neglect of duty, or malfeasance."
- While the Supreme Court had previously signed off on the president's ability to fire a postmaster, in Humphrey's case, it differentiated between executive officers and ones with "quasi-judicial and quasi-legislative" duties.
Yes, but: For decades, Humphrey's was settled law, but the modern conservative movement has gradually chipped away at it, arguing it clashes with the President's "unitary" power to control the executive branch.
- In 2020, the high court removed protections for Consumer Financial Protection Bureau officials.
- In May, the Supreme Court issued a stay allowing Trump to remove members of the National Labor Relations Board and Merit Systems Protection Board.
Do the FTC firings violate Humphrey's Executor?
Slaughter called her firing a violation of "the plain language of a statute and clear Supreme Court precedent."
- Bedoya also argued his firing was illegal, questioning, "Who will Trump's FTC work for? Will it work for the billionaires or will it work for you?"
The other side: Trump's Justice Department wants to overturn Humphrey's Executor, with the backing of Trump's FTC chair.
- In its application to stay the district court's ruling, the Justice Department argued the "modern FTC has amassed considerable executive power" and that lower courts had erred in applying Humphrey's Executor as binding.
- In a subsequent brief, the DOJ called for the court to "overrule anything that remains of Humphrey's Executor."
The bottom line: The court seems poised to uphold Trump's firing of Slaughter, but it's possible the high court could pare back the Humphrey's standard rather than strike it entirely.
Go deeper: The FTC is down to two commissioners
