The Supreme Court weighs another step in favor of broad presidential power sought by Trump

WASHINGTON– Chief Justice John Roberts has led the Supreme Court’s conservative majority in a steady drive to expand the power of the presidency that began long before Donald Trump arrived in the White House.

The justices could take the next step in a case argued Monday that calls for overturning a 90-year-old unanimous decision limiting executive power.

The Court’s conservatives, liberal Justice Elena Kagan noted in September, appear “eager to take this action.”

They have already allowed Trump, in the early months of the Republican second term, to fire almost anyone he wanted, despite the court’s 1935 ruling in Humphrey’s Executor case that bars the president from firing the heads of independent agencies without cause.

These officials include Rebecca Slaughter, whose Federal Trade Commission termination is at issue in this case, as well as officials from the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.

The only officials who have so far survived efforts to remove them are Lisa Cook, governor of the Federal Reserve, and Shira Perlmutter, copyright official at the Library of Congress. The court has already suggested it would view the Fed differently from other independent agencies, and Trump has said he wants to remove it because of allegations of mortgage fraud. Cook says she did nothing wrong.

Humphrey’s executor has long been a target of the conservative legal movement that has embraced an expanded view of presidential power known as the unitary executive.

The case before the high court involves the same agency, the FTC, that was at issue in 1935. The justices ruled that presidents — Democrat Franklin D. Roosevelt at the time — could not fire named alphabet soup leaders of federal agencies without cause.

The decision ushered in an era of powerful, independent federal agencies charged with regulating labor relations, employment discrimination, the airwaves and more.

Proponents of the unitary executive theory have said that the modern administrative state gets the Constitution completely wrong: Federal agencies that are part of the executive branch answer to the president, which includes the ability to fire their leaders at will.

As Justice Antonin Scalia wrote in a 1988 dissent that has acquired mythical status among conservatives, “it does not mean part of the executive power, but all of the executive power.”

Since 2010 and under Roberts’ leadership, the Supreme Court has gradually reduced laws restricting the president’s ability to fire people.

In 2020, Roberts wrote for the court that “the president’s removal power is the rule, not the exception” in a ruling upholding Trump’s firing of the head of the Consumer Financial Protection Bureau despite job protections similar to those upheld in Humphrey’s case.

In the 2024 immunity ruling that spared Trump from being sued for his efforts to overturn the 2020 election results, Roberts included the power to fire among the president’s “conclusive and precluded” powers that Congress does not have the authority to restrict.

But according to legal historians and even a prominent proponent of the originalist approach to interpreting the Constitution favored by conservatives, Roberts may be wrong about the history behind the unitary executive.

“The text and history of Article II are far more equivocal than the current Court has suggested,” wrote Caleb Nelson, a University of Virginia law professor who once served as a law clerk to Justice Clarence Thomas.

Jane Manners, a law professor at Fordham University, said she and other historians have filed briefs with the court to provide the history and context of the removal power in the nation’s early years, which may also cause the court to revise its view. “I’m not holding my breath,” she said.

Slaughter’s lawyers adhere to the historians’ arguments, telling the court that the limits of Trump’s power are consistent with the Constitution and U.S. history.

The Justice Department says Trump can fire board members for any reason as he works to implement his agenda and that precedent should be set aside.

“Humphrey’s executor was always terribly wrong,” wrote Solicitor General D. John Sauer.

A second issue in this case could affect Cook, the Fed governor. Even if a firing is found to be illegal, the court wants to decide whether judges have the power to reinstate someone.

Justice Neil Gorsuch wrote earlier this year that fired employees who win their cases in court will likely be able to get their pay back, but not reinstated.

This could affect Cook’s ability to keep his job. The justices appear wary of the economic uncertainty that could result if Trump succeeds in firing central bank leaders. The court will hear separate arguments in January on whether Cook can remain in his job in his lawsuit challenging the proceeds of his termination.