U.S. Supreme Court
The Supreme Court will hear two cases—Trump v. Slaughter on Dec. 8 and Trump v. Cook on Jan. 21—that are likely to substantially change the law as to when the president can fire those in the executive branch of government. President Donald Trump has claimed that it is a “unitary executive,” and that as the head of it, he can fire anyone within it.
Recent rulings on the court’s emergency docket indicate that the six conservative justices are likely to be sympathetic to this view, but it is unclear how far they will go in reshaping the law.
The law as to the removal power
The current law as to the removal power is that the president may fire those within the executive branch, but that Congress can limit removal if it is an office where independence from the president is desirable, if the statute limits removal to where there is good cause and if it is an agency headed by a multi-member commission. This rule emerges from several Supreme Court decisions over the last century.
The first major decision to consider the removal power, Myers v. United States, in 1926, involved the firing of the postmaster of Portland, Oregon, in violation of a federal law that provided that postmasters could be removed during their four-year terms only “with the advice and consent of the Senate.” Chief Justice William Howard Taft, a the former U.S. president, wrote broadly of the president’s ability to remove executive officials. He declared that “[t]he power to remove … is an incident of the power to appoint.”
Less than a decade after Myers, the court took a much different position and recognized that Congress could, for some officers and under some circumstances, limit the removal power. In Humphrey’s Executor v. United States (1935), the court unanimously upheld the ability of Congress to limit the removal of a commissioner of the Federal Trade Commission.
Under the Federal Trade Commission Act, the president could fire a commissioner only for “inefficiency, neglect of duty, or malfeasance in office.” The court explained that Congress, pursuant to its powers under Article I, could create independent agencies and insulate their members from presidential removal unless good cause for firing existed.
The Supreme Court followed this principle in many subsequent cases. In Wiener v. United States (1958), the court went further and held that even without a statutory limit on removal, the president could not remove executive officials where independence from the president is desirable. Wiener involved the president’s firing a member of the War Claims Commission. Unlike the Federal Trade Commission Act in Humphrey’s Executor, the statute creating the War Claims Commission did not expressly limit the president’s removal power. However, the court concluded that the functional need for independence of the War Claims Commission limited the president’s removal power. The court explained that Congress’s intent was for the War Claims Commission to award claims based on merit rather than on political influence. The court said that there was a “sharp differentiation” between “those who are part of the executive establishment and those whose tasks require absolute freedom from executive interference.”
In Seila Law v. Consumer Financial Protection Bureau, the court, 5-4, held that Congress could not limit the removal of the head of the Consumer Financial Protection Bureau. The court distinguished Humphrey’s Executor. It said that the Congress cannot limit removal where an agency is directed by a single person, as was the case for the CFPB. But the court did not question that Congress can limit removal where it is a multi-member commission, as with the Federal Trade Commission in Humphrey’s Executor.
Recent emergency docket rulings
Since taking office, President Trump has been emphatic that he regards Humphrey’s Executor as wrongly decided and that he believes he has the power to fire anyone in the executive branch of government. On Feb. 18, the Trump administration issued an executive order, Ensuring Accountability for All Agencies, which declared that all federal agencies are under control of the president. It said that the president can fire those within the agency without needing to comply with statutory limits on removal and that all within the agencies must adhere to the president’s policies.
In Trump v. Wilcox, a matter on the Supreme Court’s emergency docket, the six conservative justices indicated that they are likely to agree with President Trump about this, and thus indicated that they are inclined to overrule Humphrey’s Executor. Gwynne Wilcox was appointed to the National Labor Relations Board by President Joe Biden and confirmed by the Senate. Her term expires in 2028, and federal law provides that she can be fired only for “cause.” Cathy Harris is chair of the Merit Systems Protection Board and likewise under the federal statute can be fired only for cause.
President Trump fired both Wilcox and Harris without any assertion of cause for the firing. The United States District Court for the District of Columbia enjoined the firing and the D.C. Circuit in an en banc decision affirmed. But the Supreme Court in a 6–3 ruling stayed the preliminary injunction, allowing Wilcox and Harris to be fired while the matter was being litigated. In a short opinion, the court stated: “Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedent.”
Justice Elena Kagan wrote a strong dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. She defended Humphrey’s Executor, stating the decision “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” She said that under Humphrey’s Executor, the firings were clearly illegal. She wrote that “the order allows the President to overrule Humphrey’s by fiat, again pending our eventual review.”
The court followed this in July in Trump v. Boyle, in allowing the president to remove members of the Consumer Product Safety Commission, notwithstanding a federal law limiting firing to when there is just cause. Again, it was 6-3, and in a short opinion the majority indicated that the lower courts should have applied the court’s ruling in Trump v. Wilcox.
Cases on the merits docket
The court has two cases soon to be argued that are likely to clarify—and change—the law with regard to the removal power. In Trump v. Slaughter, the court will consider the constitutionality of the statute limiting removal of commissioners on the Federal Trade Commission, the same statute that was involved in Humphrey’s Executor. Rebecca Slaughter, who had been in initially appointed to the FTC by President Trump, has a term that continues until 2028. She was fired in violation of the law.
The Supreme Court granted review on two questions: 1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.
The solicitor general’s brief is stunning in its claim of uncheckable presidential power to remove all in the executive branch of government. It asserts that “Article II grants the President conclusive and preclusive power to remove executive officers.” It further asserts “Judicial orders blocking the removal of executive officers violate Article II.”
By contrast, the brief for Slaughter argues that the court should follow stare decisis and that throughout American history Congress has limited presidential removal powers. It contends: “For centuries, courts of law and equity have granted permanent and preliminary relief to improperly removed officers.”
This coming January, the court will hear another case about the removal power: Trump v. Cook. Lisa Cook is a governor of the Federal Reserve Board and she, too, is protected by a statute that limits removal to where there is “cause.” President Trump removed her, asserting that she engaged in mortgage fraud, though no court or agency ever has found any improprieties by Cook.
Interestingly, in Trump v. Wilcox, the court addressed the Federal Reserve, even though that was a case about the firing of an NLRB commissioner and the head of the Merit Systems Protection Board. The court said, “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.” Perhaps this was to provide reassurance to the stock market that President Trump could not go through with his threat to fire Jerome Powell.
One possible indication of the outcome of these cases is that the court stayed the preliminary injunction preventing the firing of Slaughter, thus allowing the removal while the case is being litigated, but it left in place the lower court order protecting Cook from removal.
These cases are likely to be enormously important for separation of powers and for determining the authority of the president, for this administration and those to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023.
