Why the Supreme Court decision on firing independent agency heads is a big deal

The demise of Humphrey's Executor and the rise of unitary executive theory

A question I’ve gotten from reporters is how long it will take the public sector to recover from the damage Trump has done. There is no easy answer to this, but I highlight one variable that will matter a lot: how much the Supreme Court embraces unitary executive theory (i.e., the idea that the President has king-like powers).

Why does this matter? A maximalist interpretation of the unitary executive theory holds that almost any Congressional (or judicial) constraints on presidential power are unconstitutional. In more specific terms, it would hold that the civil service system itself is unconstitutional. If the court adopts that reasoning, then it becomes very hard to rebuild state capacity.

Because with unitary executive theory, there is no actor that can make credible long-term commitments to public servants.

With unitary executive theory, Congress cannot write robust new legislation that modernizes the civil service and stops politicization. A President could just ignore it. Even if Trump leaves office, and a new President looks to restore nonpartisan competence, their promises are only good for four or eight years before another President can come in and rip up the terms of their employment. And over time, why would even a good government President invest effort in restoring capacity if their successor can undermine it?

With unitary executive theory, the public sector becomes permanently viewed as an unstable and chaotic workplace that we are seeing now. The most capable potential employees decide its not worth the bother, and the workforce becomes a mix of people who cannot get a job elsewhere, and short term political appointees. (The irony here is that advocates of unitary executive theory say it is not just constitutional, but will improve the performance of the public sector, notwithstanding the omnishambles we are witnessing now).

So it matters, a lot, how courts decide on questions of presidential power over personnel issues right now. We do not have many tea leaves to read, but this SCOTUS is certainly more on board with any unitary executive theory than any prior version. Decisions like the one on presidential immunity last year suggests a court willing to imbue the President with unprecedented powers.

SCOTUS gave us another hint yesterday. They decided to allow Trump to remove Democratic members of the Merit Systems Protection Board, and the National Labor Relations Board. The decision was 6-3. The court says that the President can move forward with the firing until they rule on the merits of the case, which is unlikely to happen until the next Supreme Court term. It is very hard to see the court deciding that the firings are fine now, if there is a real prospect that they will change their mind in the future. It’s like telling an arsonist to go ahead, that we can figure out if it is legal or not after your house is a charred shell.

This is a big deal, a de facto overturning of Humphrey’s Executor - the precedent that Congress can constrain the President’s removal power. This standard, which held for 90 years, now appears to be on the chopping block. Congress might say that an official can only be removed for cause like poor performance, but the President can ignore them, removing independent agency heads for any reason he deems fit.

Unitary executive theory is relatively novel, nurtured by the Federalist Society and Republican lawyers who worked in government and were frustrated by Congressional oversight. Five of the nine judges were Republican lawyers who worked in government, and all six Republican appointees have ties to the Federalist Society.

Enacting unitary executive theory means, effectively, that current executive branch officials and past executive branch officials who are now on the Supreme Court would conspire to strip Congress of its powers. In constitutional terms, it is a resetting of the separation of powers to fit the beliefs of the contemporary Republican Party.

In writing the dissent, Justice Kagan rightfully asked why things are different now, beyond the fact that conservative majority wants to get on with getting rid of Humphrey’s Executor.

Between Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise. But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey’s on the merits? The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go. In valuing so highly—in an emergency posture— the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.

Kagan also pointed out the blazing hypocrisy of one aspect of the decision. Ending Humphrey’s Executor effectively means we will no longer have truly independent agencies. Except one. The majority rushed to make clear that their decision did not hold for the Federal Reserve!

The majority closes today’s order by stating, out of the blue, that it has no bearing on “the constitutionality of for-cause removal protections” for members of the Federal Reserve Board or Open Market Committee. I am glad to hear it, and do not doubt the majority’s intention to avoid imperiling the Fed. But then, today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s. So the majority has to offer a different story: The Federal Reserve, it submits, is a “uniquely structured” entity with a “distinct historical tradition”…

Kagan justifiably mocks the “bespoke Federal Reserve exception” saying that a simpler way not to spook the markets would just be to not give Trump new powers by overturning precedent. The Federal Reserve carve out is not based on any real legal rationale beyond it’s “distinct historical tradition.” If that phrase rings a bell, it is because it echoes the wording that Alito used ("deeply rooted in [our] history and tradition") to justify overturning precedent with the Dobb’s decision. Anytime SCOTUS starts citing historic traditions, be worried about a court abandoning judicial reasoning and precedent.

In reality, the courts know that undermining Federal Reserve would be a disaster for the economy, but their respect for independent expertise does not seem to flow to any other part of the administrative state. The decision is based on generating headlines like this:

For public employees, the removal of MSPB head is especially troubling, since this allows any President to neutralize the body that is supposed to monitor personnel abuses such as politicization. Federal workers unfairly treated by Trump’s appointees have little reason to believe they will get a fair appeal from other Trump appointees.

More broadly, it shows us a SCOTUS more likely to sign with Trump on other issues of executive power. Will they stop at Schedule F, the executive order allowing Trump to turn career officials into appointees? Will it allow Trump to impound funds or dismantle agencies? We cannot say for sure, but the odds of such momentous decisions have risen.

Writing in the New York Times, Kate Shaw pointed out how the Supreme Court is undermining both Congress, and lower courts that are trying to corral the lawlessness of the Trump administration:

The Supreme Court, by contrast, has undermined lower courts seeking to protect the rule of law and emboldened an administration eager to trample it. You can see why White House lawyers could feel encouraged to advise Mr. Trump of the correctness of a claim he was once mocked for making: “I have an Article II, where I have the right to do whatever I want as president.” The court may believe that it retains the ultimate authority to check presidential lawlessness, even as it signs off on the elimination of many other constraints on presidential power. The danger is that by the time the court actually tries to exercise that authority, it may be too late.

My Ford School colleague Sam Bagenstos reaches an even more grim conclusion, suggesting that in most cases, the court will find ways to allow Trump to succeed in his goals, even if it does not formally endorse his legal theories.

But we should equally expect the courts to allow many of Trump’s abuses to proceed. I might put Trump’s mass firings, his refusals to spend appropriated funds, and his taking a chainsaw to congressionally created agencies in this category. (Note that these are the cases that most depend on mass proof, and that most significantly seek to enforce congressional prerogatives.) The Supreme Court might say that some of these actions were actually legal, though I doubt it. More likely, they’ll find some procedural way out of a confrontation with Trump. They’ll say the plaintiffs sued in the wrong court, or that they should have first pursued administrative remedies (often in agencies that Trump has also kneecapped), or that they’re the wrong plaintiffs to have brought the suit.

The Supreme Court has again, and after watching Trump in action, decided that he deserves unprecedented power unchecked by Congress. That does not augur well for the public institutions he is bent on destroying.