The Supreme Court considers further expansion of presidential authority desired by Trump

WASHINGTON Chief Justice John Roberts has guided the Supreme Courts conservative majority in gradually broadening presidential power, a trend that predates Donald Trumps presidency. The court is now evaluating a case that could overturn a 90-year-old precedent restricting executive authority.

Liberal Justice Elena Kagan observed that the court's conservatives appear eager to take such a step. In recent years, the justices have allowed Trump to remove numerous officials despite the 1935 Humphreys Executor ruling, which limits the presidents ability to dismiss heads of independent agencies without cause.

The current case centers on the Federal Trade Commission and the firing of Rebecca Slaughter. Other officials from agencies including the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission have also been dismissed. Only a few, like Federal Reserve governor Lisa Cook and copyright official Shira Perlmutter, have remained in place, though Trump has expressed interest in removing Cook over alleged mortgage fraud, which she denies.

The Humphreys Executor decision, issued during Franklin D. Roosevelts presidency, established protections for leaders of independent federal agencies, shaping decades of administrative governance over labor, employment, and regulatory matters. Advocates of the unitary executive theory argue that all executive branch leaders should be fully accountable to the president, including the power to dismiss them at will. Justice Antonin Scalia famously emphasized this view in a 1988 dissent.

Since 2010, under Roberts leadership, the Supreme Court has consistently narrowed restrictions on presidential removal powers. In a 2020 ruling, Roberts affirmed that presidential removal authority is generally the rule, not the exception. He later described this power as conclusive and preclusive, limiting Congresss ability to constrain it.

However, some legal scholars dispute the historical basis for the unitary executive concept. Caleb Nelson, a University of Virginia law professor and former clerk to Justice Clarence Thomas, has noted that Article II of the Constitution is more ambiguous than the courts current interpretation suggests. Historians, including Jane Manners from Fordham University, have submitted briefs to provide context on early U.S. practices regarding executive removals.

Slaughters attorneys argue that limiting Trumps removal powers aligns with constitutional principles and historical precedent. The Justice Department contends the president should have broad authority to dismiss officials to implement his policy agenda, calling the Humphreys Executor decision egregiously wrong.

The case also raises questions about whether courts can reinstate officials who are illegally removed. Justice Neil Gorsuch has suggested that while employees may receive back pay, reinstatement may not be permitted. This issue could influence Cooks position at the Federal Reserve, with separate hearings scheduled in January.

Author: Riley Thompson