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

In a pivotal case being argued before the Supreme Court on Monday, Chief Justice John Roberts and the court’s conservative majority appear poised to significantly expand presidential powers, continuing a pattern that began well before Donald Trump’s first administration.

At stake is the potential overturning of a unanimous 90-year-old decision, Humphrey’s Executor, which has historically limited executive authority by prohibiting presidents from removing the heads of independent agencies without cause.

Justice Elena Kagan noted in September that the court’s conservatives seem “raring to take that action,” a sentiment that appears to be playing out in real time. Since Trump’s return to office, the court has already allowed him to fire numerous officials despite the longstanding precedent set in 1935.

Among those dismissed is Rebecca Slaughter of the Federal Trade Commission (FTC), whose firing is the subject of Monday’s case. Officials from several other independent agencies, including the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission, have also been removed.

Only two officials have thus far survived removal efforts: Lisa Cook, a Federal Reserve governor, and Shira Perlmutter, a copyright official with the Library of Congress. The court has indicated it may view the Federal Reserve differently than other independent agencies. Trump has stated he wants Cook removed due to allegations of mortgage fraud, which Cook denies.

The Humphrey’s Executor case has long been in the crosshairs of the conservative legal movement, which champions an expansive view of presidential power known as the “unitary executive theory.” Ironically, the original 1935 case involved the same agency—the FTC—that is central to the current dispute.

When the Supreme Court ruled in 1935, it established that presidents (at that time, Franklin D. Roosevelt) could not fire leaders of federal agencies without cause. This decision helped create powerful independent federal agencies responsible for regulating labor relations, employment discrimination, broadcasting, and numerous other areas of American life.

Proponents of the unitary executive theory argue that the modern administrative state misinterprets the Constitution. They contend that federal agencies within the executive branch answer directly to the president, including through the president’s authority to fire their leaders at will.

The late Justice Antonin Scalia articulated this view in a now-influential 1988 dissent, asserting that the Constitution grants the president “not some of the executive power, but all of the executive power.”

Under Roberts’ leadership since 2010, the Supreme Court has methodically reduced restrictions on presidential firing authority. In 2020, Roberts wrote that “the President’s removal power is the rule, not the exception” when upholding Trump’s firing of the Consumer Financial Protection Bureau director despite job protections similar to those in the Humphrey’s case.

Roberts further expanded this view in the 2024 immunity decision shielding Trump from prosecution for his efforts to overturn the 2020 election results. In that ruling, Roberts included the power to fire among the president’s “conclusive and preclusive” powers that Congress cannot restrict.

However, legal historians and some proponents of originalism—the interpretive approach favored by conservatives—question Roberts’ historical understanding. Caleb Nelson, a University of Virginia law professor and former clerk to Justice Clarence Thomas, has written that “both the text and the history of Article II are far more equivocal than the current Court has been suggesting.”

Jane Manners, a Fordham University law professor, noted that historians have filed briefs providing historical context about removal powers in early America that could prompt the court to reconsider its views, though she is “not holding my breath.”

Slaughter’s legal team has embraced these historical arguments, contending that limits on Trump’s power align with both the Constitution and American history. Meanwhile, the Justice Department, representing the Trump administration, argues that the president should be able to fire board members for any reason to implement his agenda, calling Humphrey’s Executor “egregiously wrong.”

A secondary question in the case could affect Fed governor Lisa Cook and others in similar positions: even if a firing is deemed illegal, do judges have the power to reinstate the fired official? Justice Neil Gorsuch has suggested fired employees who win in court might receive back pay but not reinstatement.

The Supreme Court has scheduled separate arguments in January specifically addressing whether Cook can remain in her position while her case proceeds, with justices appearing cautious about potential economic uncertainty that could result from allowing presidents to fire Federal Reserve leaders at will.