President Donald Trump’s Department of Justice is seeking to overturn a landmark Supreme Court case in an effort to give the president greater control over independent three-letter agencies.
In a move that could allow Trump to more easily fire officials who refuse to implement his policies, the acting U.S. solicitor general sent Illinois Democratic Sen. Dick Durbin a letter on Wednesday, notifying him of the Justice Department’s plans to ask the Supreme Court to overturn a key precedent that limits the president’s power to remove independent agency members.
The letter, penned by Acting Solicitor General Sarah Harris, says the DOJ has determined “that certain for-cause removal provisions” that apply to certain administrative agency members are unconstitutional, and the department would “no longer defend their constitutionality.”
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Humphrey’s Executor v. United States, the case in question, is a 1935 Supreme Court case that narrowed the president’s constitutional power to remove agents of the executive branch.
Earlier this month, a former NLRB member sued President Donald Trump over her termination, arguing that federal law protects her from being arbitrarily dismissed. (Evan Vucci/AP)
Harris cited a previous case, Myers v. United States, which held that the Constitution granted the president sole power to remove executive branch officials.
“The exception recognized in Humphrey’s Executor thus does not fit the principal officers who head the regulatory commissions noted above,” Harris wrote in the letter.
“To the extent that Humphrey’s Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf, and which has already been severely eroded by recent Supreme Court decisions,” Harris continued.
Durbin called the letter a “striking reversal of the Justice Department’s longstanding position under Republican and Democratic presidents alike,” in a statement to Fox News Digital. He added that the request is “not surprising from an administration that is only looking out for wealthy special interests – not the American people.”
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However, conservative legal theorists supported the Trump administration’s move, arguing that overturning Humphrey’s Executor would move the federal government closer to the original intent of the Constitution’s framers. Trump notably posed his presidential campaign against former President Joe Biden as a contest between the “deep state” and democracy, saying at the time, “Either we have a deep state or we have a democracy. We’re going to have one or the other. And we’re right at the tipping point.”
“Congress makes the laws, it’s the president’s duty to carry out and enforce those laws under the unitary executive theory,” Hans von Spakovsky, Senior Legal Fellow at the Heritage Foundation, told Fox News Digital. “That means that the president, since he’s the head of the executive branch, has complete control over the executive branch, and that includes the hiring and firing of everyone in the executive branch, most particularly, and most importantly, the heads of all the different offices and departments within the executive branch.”
The Acting U.S. Solicitor General sent Illinois Democratic Sen. Dick Durbin a letter on Wednesday, notifying him of the Justice Department’s plans to ask the Supreme Court to overturn a key precedent limiting the president’s power to remove independent agency members. (AP Photo/Mark Schiefelbein)
Von Spakovsky says the exception carved out by the Court in Humphrey’s Executor “does not apply to these federal agencies.” In her letter, Harris specifically mentioned the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB) and the Consumer Product Safety Commission (CPSC).
Earlier this month, a former NLRB member sued Trump over her termination, arguing that federal law protects her from being arbitrarily dismissed. The Trump administration has also become the target of various other lawsuits involving federal employee dismissals.
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“My take on what’s going on with the Trump agenda right now is that they’re itching to get up to the higher federal court level, including the Supreme Court, to press just this kind of question,” Ronald Pestritto, Graduate Dean and Professor of Politics at Hillsdale College, told Fox News Digital.
Pestritto says some of the administration’s actions “contradict existing civil service law, existing protections, for example, against removing the NLRB commissioners.”
“And so the real tale of the tape will be when these initial rulings get appealed up the appellate ladder and ultimately up to the Supreme Court, which certainly has many justices who I think understand Article II of the Constitution properly and may be open to a reconsideration of Humphrey’s,” Pestritto said. (Photo by Olivier DoulieryAFP via Getty Images)
“And so, clearly, they know they’re going to lose a lot of that at the lower court level. And they want to push them up into the Supreme Court, because they think they might get a reconsideration of it,” Pestritto said.
Von Spakovsky stated that independent agencies are “unaccountable” as a result of Humphrey’s Executor, saying “you make them accountable to voters by putting them back where they belong, which is under the authority of the president.”
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Trump’s lawyers are likely to lose in the lower court, Pestritto says, where he expects judges to apply the Supreme Court’s precedent in their own decisions. But even so, the Trump administration can appeal higher and higher to attempt to get Supreme Court review, where Humphrey’s Executor could be overturned.
“[Democrats] are going to win injunctions very often, first of all, because they know it’s easy to judge-shop for sympathetic district judges. And number two, the district judges are basically going to go by the existing Supreme Court precedent,” Pestritto said. “And so the real tale of the tape will be when these initial rulings get appealed up the appellate ladder and ultimately up to the Supreme Court, which certainly has many justices who I think understand Article II of the Constitution properly and may be open to a reconsideration of Humphrey’s.”
