In a charge to dissect an operational state that has for generations operated as an inexplicable and possibly unconstitutional third branch of government, the Trump presidency is restructuring agencies, axeing naive programs, and deregulating at a rapid pace. With Trump’s firing of the board member who had been serving as acting head of the National Labor Relations Board ( NLRB ) poised to bring the conflict to a head, the administration has struck at perhaps the most dubious manifestation of the administrative state’s most dubious manifestation — so-called “independent” agencies in an effort to jettison bureaucrats likely to resist the Trump agenda.
‘ Independent ‘ Agencies Mean Insubordinate Agencies
Democrats believed that the Constitution and its separation of powers, which they claim to be a science, should be used to guide government operations. Independent companies can be seen as perhaps their best Frankenstein’s dragon.
The Federal Communications Commission (FCC), Federal Trade Commission (FTC ), and NLRB frequently exercise over-the-top control over Americans ‘ lives and finances by issuing contagious rules and regulations.
But unlike their classmates, these “independent” agencies typically make such choices without national monitoring or power. Additionally, while leaders appoint and lawmakers confirm those who lead these institutions, users or commissioners usually serve rushed terms or terms outlasting any one management. By regulation, the government’s power to reject organization leaders is circumscribed. The commander-in-chief properly simply fire them for cause— thus their “independence”.
By issuing an executive attempt to “ensure National care and control of the entire senior branch,” President Trump has attempted to squeeze these organizations. It requires that all government entities pass their administration, money, and operations through the White House, as well as imposing regulations on them.
However, unfortunately, personnel is plan, and the courts have ruled that presidents does not fire separate agency leaders at will. So, the leader has lacked complete control over officers, and scheme, within these institutions.
The Trump administration claims that it interprets the rules in a different way and has pledged to reject pertinent Supreme Court decisions. The NLRB’s fire, which in turn led to a petition, may soon set that law to the test.
To know the getting legal clash and its importance, some background is in order.
The Supreme Court’s law of insulating the administrative condition
In 1926, the Supreme Court held in Morris v. U. S.  , that the power to remove appointed officers — in that case, a postal — is vested in the leader and the president only. Absent that power, a commander-in-chief could not “discharge his … constitutional duty of seeing that the laws be faithfully executed”, Chief Justice William Howard Taft wrote for the majority.
The Supreme Court hemmed in the president’s removal power by upholding congressional restrictions in Humphrey’s Executor v. U.S. ten years later, as the administrative state rapidly expanded during the height of the New Deal.
In the middle of the member’s term, Democrat President Franklin Delano Roosevelt attempted to replace Republican President Herbert Hoover-nominated FTC member William E. Humphrey with a pick of his own. FDR asked for Humphrey’s resignation on grounds of political differences. Humphrey resisted, leading the president to fire him. Shortly after, the recalcitrant FTC member passed away, but his executor filed a lawsuit to recover his back pay as a result of the alleged unlawful dismissal.
Humphrey’s executor, representing the late commissioner’s estate, argued that FDR could not fire him but for reasons of “inefficiency, neglect of duty, or malfeasance in office”, pursuant to the legislation establishing the FTC. The president, in short, could not fire commissioners at will.
The Supreme Court ruled in favor of the plaintiff, arguing these constraints on the president’s removal power were lawful by distinguishing between his “illimitable” or “unrestrictable” power to remove “purely executive officers” and his limited power to remove officers serving in “independent agencies” exercising purportedly “quasi-legislative” and/or “quasi-judicial powers”.
In Morrison v. Olson, the Supreme Court would grant the president’s removal power to “certain inferior officers with narrowly defined duties” with respect to tenure protections.
The Supreme Court has hacked away at administrative state power in recent years, including refusing to grant independent agency officers any rights beyond the 1935 precedent.
In a 2020 case, Seila v. CFPB, the court ruled that on account of differences in the agency’s structure, partisan makeup, and functions relative to the multi-member, bipartisan FTC, a president could fire the Consumer Financial Protection Bureau’s director at will.
We decline to turn it into a freestanding invitation for Congress to impose additional restrictions on the President’s removal authority, Chief Justice John Roberts wrote for the majority.
In a concurrence, Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote that the court ought to go further and overturn Humphrey’s Executor— in effect threatening the foundations of “independent” agencies themselves.
The associate justice argued that the decision violated the constitutional foundation of Article II by giving executive powers to those who are not related to the executive, infringing on his removal powers, and undermining the principle of accountability. In addition, Thomas said:
The Constitution does not permit the creation of officers exercising “quasi-legislative” and “quasi-judicial powers” in “quasi-legislative” and “quasi-judicial agencies”. There are no such authorities or organizations. Congress is unable to appoint officers acting outside the bounds of Article III the authority to delegate their legislative powers.
Thomas concluded that” ]c ] ontinued reliance on Humphrey’s Executor to justify the existence of independent agencies creates a serious, ongoing threat to our Government’s design. … Today, the Court does enough to resolve this case, but in the future, we should reconsider Humphrey’s Executor in toto”.
The future may now be here.
Restoring executive authority to the executive branch
Acting Solicitor General Sarah Harris recently informed Senate Judiciary Committee Ranking Member Dick Durbin, D-Ill., that the Trump administration will not support the constitutionality of “certain for-cause removal provisions that apply to members of multi-member regulatory commissions,” including the FTC, NLRB, and Consumer Product Safety Commission ( CPSC ). Additionally, Harris vowed that the Justice Department would “urge the Supreme Court to overrule” Humphrey’s Executor in any way that contradicts its position.
The administration reiterated its position in a case pending before the Supreme Court regarding the challenged firing of the Office of Special Counsel, and Trump has fired the former NLRB acting chair, who has brought a lawsuit against the administration for her dismissal.
Humphrey’s Executor appears to be headed on the fast track to the Supreme Court for reevaluation, and Justice Thomas may well get the chance to play Humphrey’s Executor’s executioner.
The Supreme Court may also challenge the idea of independent agencies themselves with it.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten. substack .com, and follow him on Twitter: @bhweingarten.
