ANALYSIS:
The Supreme Court signaled Monday a readiness to upend a 90-year-old precedent and give presidents expansive powers to fire top officers at independent agencies, saying the way the commissions and boards are run now insulates them from political accountability.
Chief Justice John G. Roberts Jr. declared the 1935 precedent, a case known as Humphrey’s Executor, to be “just a dried husk” that’s been overtaken by law and the modern expansive administrative state that runs much of government.
He and the court’s other Republican-appointed justices seemed ready to take up the call by President Trump’s lawyer, Solicitor General D. John Sauer, to find that agencies such as the Federal Trade Commission, the National Labor Relations Board and the Merit Systems Protection Board must fall under full presidential control.
“The Constitution requires clear lines of political accountability,” Mr. Sauer told the court.
The prospect horrified the court’s Democratic appointees.
“You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent,” Justice Sonia Sotomayor, an Obama appointee, told Mr. Sauer.
Overturning the precedent and confirming expansive presidential firing powers would be a major victory for conservatives who have advanced the “unitary executive” theory of government, which generally holds that a president has total control over people and powers deemed to be part of the executive branch.
The case before the justices sprang from Mr. Trump’s firing of Federal Trade Commissioner Rebecca Slaughter, first appointed under Mr. Trump and later reappointed under President Joseph R. Biden.
The law only allows firing for cause, which generally means some form of malfeasance. Mr. Trump offered no evidence of malfeasance in his removal.
He’s made similar moves at the NLRB, the MSPB, the Office of Special Counsel, the Library of Congress, the Consumer Product Safety Commission, the Equal Employment Opportunity Commission and the Nuclear Regulatory Commission, among others.
Mr. Sauer counted about two dozen such agencies in which presidents’ firing powers are constricted.
Mr. Trump has also attempted to fire Lisa Cook, a member of the Federal Reserve Board of Governors, though in that case he did suggest cause, pointing to allegations his administration has made about mortgage fraud.
Mr. Sauer said the Federal Reserve is unique and isn’t covered by the arguments over the other agencies.
That issue appeared dear to Justice Brett M. Kavanaugh, a Trump appointee, who said he had “concerns” over firing authority at the Federal Reserve.
Mr. Sauer also said the FTC case doesn’t affect the setup of tribunals that fall outside the traditional courts, such as the tax court or federal claims court.
The Supreme Court has allowed Mr. Trump to carry out the firings at the FTC, NLRB and MSPB while those cases percolated up from lower courts, underscoring their readiness to move beyond the Humphrey’s Executor framework.
However, the justices have allowed Ms. Cook to remain in her post at the Federal Reserve, suggesting they see that differently.
Justice Elena Kagan predicted chaos if the court were to expand presidents’ firing powers.
She said what’s emerged over the centuries is a grand bargain, struck by Congresses and presidents, to share power in some areas through these independent agencies. That means Congress has converted some of its legislative powers to agencies’ rule-making authority but demanded insulation from a president’s total control in return.
“They’ve given all of that power to these agencies largely with it in mind that the agencies are not under control of a single person, of the president, but indeed Congress has a great deal of influence over them too,” Justice Kagan, an Obama appointee, told Mr. Sauer. “The result of what you want is that the president is going to have massive unchecked, uncontrolled power.”
Justice Neil M. Gorsuch said that bargain wasn’t one the country’s founders would have recognized. He blamed the judiciary for not setting better boundaries earlier.
“This court, as part of this bargain has allowed these agencies to exercise both executive and legislative,” said Justice Gorsuch, a Trump appointee.
He said if the court does expand presidential firing powers, something may need to happen on the other side with the powers Congress last given up.
Amit Agarwal, the lawyer for Ms. Slaughter, urged the justices to leave the matter to the give-and-take of Congress and the president.
“These are really difficult line-drawing problems and the way that has been resolved is through the political process,” Mr. Agarwal said.
But he struggled to draw his own lines.
Several justices envisioned a Congress and president of the same party who create a number of new agencies or convert existing departments into independent commissions or boards with lengthy terms that would put them beyond the reach of a subsequent president of the opposite party.
