independent agency official

WASHINGTON — The Supreme Court said Monday it will decide on reversing a 90-year precedent that has protected independent agencies from direct control by the president.

The court’s conservative majority has already upheld President Trump’s firing of Democratic appointees at the National Labor Relations Board and Merit Systems Protection Board. And in a separate order on Monday, it upheld Trump’s removal of a Democratic appointee at the Federal Trade Commission.

Those orders signal the court is likely to rule for the president and that he has the full authority to fire officials at independent agencies, if Congress said they had fixed terms.

The only hint of doubt has focused on the Federal Reserve Board. In May, when the court upheld the firing of an NLRB official, it said it decision does not threaten the independence of Federal Reserve.

The court described it as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” Trump did not share that view. He threatened to fire Federal Reserve Chair Jerome Powell during the summer because he had not lowered interest rates.

And he is now seeking to fire Federal Reserve Governor Lisa Cook, a Biden appointee, based on the allegation she may have committed mortgage fraud when she took out two home loans in 2021.

Trump’s lawyers sent an emergency appeal to the Supreme Court last week seeking to have Cook removed now.

Long before Trump’s presidency, Chief Justice John G. Roberts had argued that the president has the constitutional power to control federal agencies and to hire or fire all officials who exercise significant executive authority.

But that view stands in conflict with what the court has said for more than a century. Since 1887, when Congress created the Interstate Commerce Commission to regulate railroad rates, lawmakers on Capitol Hill believed they had the authority to create independent boards and commissions.

Typically, the president would be authorized appoint officials who would serve a fixed term set by law. At times, Congress also required the boards have a mix of both Republican and Democratic appointees.

The Supreme Court unanimously upheld that understanding in a 1935 case called Humphrey’s Executor. The justices said then these officials made judicial-type decisions, and they should be shielded from direct control by the president.

That decision was a defeat for President Franklin Roosevelt who tried to fire a Republican appointee on the Federal Trade Commission.

In recent years, the chief justice and his conservative colleagues have questioned the idea that Congress can shield officials from direct control by the president.

In Monday’s order, the court said it will hear arguments in December on “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, 295 U. S. 602 (1935), should be overruled.”

Justice Elena Kagan has repeatedly dissented in these cases and argued that Congress has the power to make the law and structure the government, not the president.

Joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, she objected on Monday that the court has continued to fire independent officials at Trump’s request.

“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” she wrote. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

WASHINGTON — The Supreme Court on Thursday upheld, for now, President Trump’s decision to fire two agency officials who had fixed terms that were set by Congress.

By a 6-3 vote, the justices set aside rulings that would have reinstated Gwynne Wilcox to the National Labor Relations Board and Cathy Harris to the Merit Systems Protection Board. Both were appointees of President Biden.

The decision is the latest in which the court’s conservative majority sided with the president’s power to fire agency officials in violation of long-standing laws.

“Because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf,” the court said in an unsigned order.

But the justices were quick to add the Federal Reserve Board is not affected by this decision.

“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,” the court said.

President Trump has threatened to fire Fed Chair Jerome Powell, whose term extends to next year.

At issue is a fundamental dispute over whether the Constitution gave the president or Congress the power to set the structure of the federal government.

In 1935, the court ruled unanimously that Congress can create independent and “nonpartisan” boards and commissions whose members are appointed by the president for a fixed term. The court then drew a distinction between “purely executive officers” who were under the president’s control and members of boards whose duties were more judicial or legislative.

But in recent years, conservatives have questioned that precedent and argued that the president has the executive power to hire and fire all officials of the government.

Shortly after taking office, Trump fired Wilcox and Harris even though their terms had not expired. They sued contending the firings were illegal and violated the law.

They won before a federal judge and the U.S. court of appeals.

Those judges cited the Supreme Court’s 1935 decision that upheld Congress’ authority to create independent boards whose members are appointed by the president to serve a fixed-term.

Trump’s lawyers say the Constitution gives the president full executive power, including control of agencies. And that in turns gives him the authority to fire officials who were appointed to a fixed term by another president, they said in Trump vs. Wilcox.

Justice Elena Kagan filed an eight-page dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

“Today’s order favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument—and the passage of time— needed to discipline our decision-making,” Kagan wrote. “I would deny the President’s application. I would do so based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history.”

The court said its decision was not final.

The NLRB was created by Congress in 1935 as a semi-independent agency tasked with enforcing the labor laws. Its general counsel serves as a prosecutor while the board‘s five members act as judges who review administrative decisions arising from unfair-labor claims brought by unions.

Under the law, the president appoints the general counsel who can be fired but board members have five-year terms. They may be fired for “neglect of duty or malfeasance in office,” but not simply because of political disagreements.

Trump could have controlled the board by appointing members to fill two vacancies. He chose instead to fire Wilcox, leaving the board without a quorum of three members.

Wilcox argued there was no reason to rush to change the law.

“Over the past two centuries, Congress has embedded modest for-cause removal restrictions in the structure of numerous multi-member agencies,” she said in response to the administration’s appeal. She noted that all past presidents — Republicans and Democrats — did not challenge those limits.

The Merit System Protections Board was created by Congress in 1978 as a part of a civil service reform law. Its three board members have seven-year terms, and they review complaints from federal civil servants who allege they were fired for partisan or other inappropriate reasons.

Trump’s decision to fire Harris also left the board without a quorum.