As President Donald Trump and his billionaire compatriot Elon Musk rampage lawlessly through the federal government, they’ve pointedly ignored a key distinction within the executive branch: agencies that are explicitly under the president’s control versus independent agencies that Congress set up to be insulated from elections, presidents and politics.
The administration has already fired board members at such agencies, including the National Labor Relations Board and the Equal Employment Opportunity Commission, teeing up a Supreme Court showdown over one of the last safe havens of independent federal government decision-making — agencies led by bipartisan, Senate-confirmed panels, where a power-hungry president can’t just fire leaders and replace them with partisan stooges.
If Trump prevails, it’ll bring to life the right-wing vision of a unitary executive — where the president controls the entire executive branch — realizing a longtime goal of many in the conservative legal movement.
Asked whether the Supreme Court would uphold the key precedent affirming these agencies’ independence, legal experts TPM spoke with were not optimistic.
There’s “a bat’s chance in hell,” Blake Emerson, professor of law and political science at UCLA, told TPM, adding: “If I were a betting person, I would expect it to be overruled.”
The right-wing supermajority Court would have to stand up both to Trump, with his openly monarchical aspirations, and to the conservative legal world in which many of them live — factors that explain the gloomy outlook.
The Roberts Court has been marching in this direction for some time, recently leaving independent agencies with single heads — notably, the object of perpetual Republican disdain, Elizabeth Warren’s Consumer Financial Protection Bureau — open to at-will firing by the President. The justices haven’t yet crossed the Rubicon toward the last bastion of executive branch independence, those agencies led by multi-member commissions. These agencies were set up by Congress to be insulated from partisan influence by leadership panels with overlapping terms of longer than four years, often a mix of political ideologies and, most importantly, removal protections.
As lawyers for Gwynne Wilcox, the fired, Senate-confirmed Democrat on the NLRB wrote in a lawsuit challenging her dismissal, members can only legally be dismissed for “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing.” Instead, Wilcox was abruptly terminated in a late-night email due to not sharing the “objectives” of Trump’s administration, per the complaint.
Department of Justice lawyers revealed in a letter to Sen. Dick Durbin (D-IL) that they are squarely targeting those removal protections.
But, as pessimistic as most of the experts are about the fate of these agencies, many expressed the same sliver of hope: The Supreme Court’s conservative majority may be enthusiastic about Trump’s quest to neuter or weaponize agencies meant to protect workers or consumers — but it may not be quite so blithe about a potential coup of the Federal Reserve, the central banking system of the United States, towards which Trump has long harbored animosity. The Fed has a similar leadership structure to the independent agencies Trump has already gone after.
“It is widely speculated that the Court does not want to overturn the independence of the Fed — there would be economic impacts they don’t want to be held responsible for,” Peter Shane, a leading scholar in U.S. constitutional and administrative law, told TPM, adding that the Court may not want to give the United States the dubious distinction of being the “only post-industrial democracy that does not have independent central bank.”
The Fed was created in the first place to stabilize the economy after a series of financial panics, its independence granted so that decisions on monetary policy could be made, say, without being influenced by a president juicing up the economy to win reelection, disregardinging the ramifications that would follow. The degradation of those protections, long held as sacrosanct, could fuel global instability.
Bleak Trajectory
The Roberts court has expressed consistent hostility towards agency power, in keeping with the legal culture some of the justices came up in: John Roberts and Samuel Alito, for example, worked as lawyers in the Reagan administration, the first to cite and push the unitary executive theory. Under that theory, every agency in the executive branch is directly under the President’s control.
Now, the Court is close to bringing that theory to life. One last obstacle to a total presidential takeover is Humphrey’s Executor, the 90-year precedent holding that Congress can restrict the President’s ability to remove leaders of agencies headed by multi-member commissions.
In 2020, when the Court ruled that the CFPB director, and other single agency heads, could not be protected from at-will firing in Seila Law v. CFPB, Roberts wrote for the majority that agencies similar to the Federal Trade Commission — the multi-member commission protected in Humphrey’s Executor — may still be an exception.
The Trump administration is betting that in the four years since Seila Law, the Court has prepared itself to overrule Humphrey’s Executor completely. And it’s marketing this legal push carefully. The letter to Durbin, signalling the administration’s intention to get the precedent overturned, notably did not mention the Federal Reserve, though it named other agencies. In an executive order where Trump purported to take control of every independent agency, the administration added a supposed “carveout” for the monetary policy functions of the Fed. The boundaries of such a carveout, however, are far murkier than the administration acknowledges.
“It can’t work in practice with the Fed as currently structured — the only way it would work is if Congress separated out the two sets of functions,” Shane said of the Fed’s monetary policy and regulatory duties. “Since Congress cannot agree that the sun rises in the east, it seems unlikely that they’d be able to do such a restructuring.”
Still, the administration’s intent is clear: Try to assuage the Court’s concerns about a Fed takeover in order to clear the way to potentially do that later.
‘It Just Makes Shit Up’
That leaves the anti-administrative-state Court in a tough place. As many as all of the conservatives may want to overturn Humphrey’s Executor, but fear the destabilization of a captured Federal Reserve. When the lawsuits stemming from the unlawful firings get to the Court — an eventuality that could be months or years away — there will likely be amicus briefs from traditionally GOP-aligned business interests warning of the macroeconomic earthquake to come if the Fed loses its independence.
“Traditional Republicans and conservatives who care about business interests and expertise worry about partisan meddling in financial regulation,” Jed Shugerman, an expert in presidential power at Boston University, told TPM.
Experts are watching Roberts and Justice Amy Coney Barrett closely, theorizing they might be the likeliest candidates to join the liberals in a decision protecting the agencies. Roberts, who has led the charge against independent agencies and wrote for the majority in Seila Law, seems like an odd choice — but on a Court this right-wing, his professed interest in institutional integrity and his decision to stop short of overturning Humphrey’s Executor in that 2020 case serve as (meager) tea leaves.
Barrett is the only conservative who didn’t serve in the executive branch, and has occasionally pulled back from the Court’s blessing of maximal expressions of presidential power (multiple experts, for example, pointed to her concurring decision in the blockbuster presidential immunity case last term as more reasonable than the majority’s).
“I have little-to-no confidence that any of the other conservative members are gonna want to maintain Humphrey’s Executor,” Emerson said. “Unless Gorsuch, who sometimes has different views, has a come-to-Jesus moment on the administrative state, I don’t see it happening.”
There’s also the possibility that the Court will attempt to concoct some reason that the Fed is special, and deserves protections that the other independent agencies don’t.
“Could they do it consistent with their own apparent understanding of the scope of executive power and how the Constitution should be understood? No,” Shane said. “But if the Court is willing to make up stuff about immunity, what else could it make it up? That’s what’s so destabilizing about the Roberts court — it just makes shit up.”
Then, of course, there’s the simplest ending of them all: The Court will overturn Humphrey’s Executor, obliterating any meaningful protections for this last category of independent agencies, and making the entire executive branch an extension of presidential power.
Pretty much says it all, no?
I feel like the only safe course these days is to assume the worst, then be glad for any daylight that remains between that expectation and reality.
I’m not gonna hold my breath waiting for SCOTUS to do the right thing.
Supreme Court Justices may find out sooner than they think that they too can be replaced by presidential whim. I’m sure that DonOLD has Mel working on gag for ,
and that sword will be confiscated.
There’s no explicit authority in Article I for Congress to create agencies of the executive branch, so it would appear to be derived from the “general Welfare” clause of section 8.
There is also no general grant of authority in Article II for the president to wield all executive authority. But section 2 makes it abundantly clear that the president’s appointment authority over the executive branch is limited to those positions whose existence is “established by Law,” i.e., legislation enacted by Congress. There are no textual limits on Congress’s authority to establish those positions and the manners in which they are to operate.
The unitary executive thing is atextual bullshit. Just like John Roberts likes his legal theories.