When Gwynne A. Wilcox sued President Trump on Wednesday over her firing from the National Labor Relations Board, her lawsuit included an unusually candid statement. Ms. Wilcox knew, she said, that Mr. Trump was hoping she would take him to court.
“The president’s action against Ms. Wilcox is part of a string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress’s power to create independent agencies like the board,” her lawyers wrote, adding that she “has no desire to aid the president in establishing a test case.”
The alternative, the suit said, was even less attractive: surrender.
Ms. Wilcox is right to be wary. If the case reaches the Supreme Court, as is likely, the court’s conservative majority will be receptive to Mr. Trump’s argument that presidents have unlimited power to remove members of independent agencies. Such a ruling would accomplish a major goal of the Trump administration and the conservative legal movement: to place what they call the administrative state under the complete control of the president.
A foundational precedent from 1935, which ruled that Congress can shield independent agencies from politics, stands in the way of that project. But some conservative justices have been itching to overrule the precedent, Humphrey’s Executor v. United States.
The new case may give them a chance to do so, said Jonathan H. Adler, a law professor at Case Western Reserve University.
“This litigation squarely presents the question of whether independent agencies can remain independent,” he said. “It’s arguably a gift to the administration.”
There is little question that Ms. Wilcox’s dismissal violated a federal law, which says the president can remove members of the labor board only in cases of “neglect of duty or malfeasance in office, but for no other cause,” and then only after “notice and hearing.”
A late-night email firing Ms. Wilcox cited no cause, gave no notice and provided no hearing. The question in her case, then, is not whether her firing violated the federal law. It is whether the law violates the Constitution.
Ms. Wilcox seemed keenly aware that her suit would have to navigate a legal minefield given the live possibility that the Supreme Court may strike down the removal provision of the National Labor Relations Act. That was, her suit suggested, the lesser of two evils.
“If no challenge is made,” her lawyers wrote, “the president will have effectively succeeded in rendering the N.L.R.A.’s protections — and, by extension, that of other independent agencies — nugatory.”
Ms. Wilcox, who is represented by Deepak Gupta, a prominent Supreme Court litigator, cited Humphrey’s Executor. “Congress has relied on that precedent for 90 years in structuring independent agencies,” the lawsuit said, “and abandoning it now could cast a cloud over a wide variety of agency decision-making.”
Humphrey’s Executor concerned a federal law that protected commissioners of the Federal Trade Commission, saying they could be removed only for “inefficiency, neglect of duty or malfeasance in office.”
President Franklin D. Roosevelt nonetheless fired a commissioner, William Humphrey. The only reason he gave was that Mr. Humphrey’s actions were not aligned with the administration’s policy goals.
Mr. Humphrey died a few months later, and his estate sued to recover the pay he would have received in that time. The Supreme Court unanimously ruled that the firing had been unlawful and that the statute at issue was constitutional.
In 2020, the Supreme Court seemed to lay the groundwork for overruling that precedent in a case involving the Consumer Financial Protection Bureau.
The law that created the bureau, using language identical to that at issue in Humphrey’s Executor, said Congress could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
Chief Justice John G. Roberts Jr.’s majority opinion in the 5-to-4 decision struck down that provision, saying it violated the separation of powers.
Chief Justice Roberts drew a distinction between agencies led by a single director, like the consumer bureau, and bodies with multiple members, like the trade commission and the labor board, but several justices said they did not think the differences were meaningful.
In language that anticipated the court’s decision in July granting Mr. Trump, then a private citizen, substantial immunity from prosecution for conduct during his first term, Chief Justice Roberts said the presidency requires an “energetic executive.”
“In our constitutional system,” he wrote in 2020, “the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
The reasoning in the chief justice’s opinion left Humphrey’s Executor on life support. Two members of the court — Justices Clarence Thomas and Neil M. Gorsuch — would have pulled the plug right away.
“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” Justice Thomas wrote.
He added: “With today’s decision, the court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”
Justice Elena Kagan, writing for what was then the court’s four-member liberal wing, dissented, saying that the Constitution says nothing about the scope of the president’s power to fire subordinates. Congress should be free, she said, to grant agencies “a measure of independence from political pressure.”
In 1935, the Supreme Court clashed with the president. Ninety years later, it may empower him.
Roosevelt was furious when the court ruled against him in Humphrey’s Executor. Justice Robert H. Jackson, a member of his administration at the time, told an interviewer in 1949 that no other ruling had made the president “madder at the court” and that Roosevelt “thought they went out of their way to spite him personally.”
How challenges to Mr. Trump’s many executive orders fare in the Supreme Court will unfold in the coming months and years. But if Ms. Wilcox’s case reaches the justices, he is likely to emerge in a more cheerful mood than his predecessor.
The post Suit Over Firing by Trump Could Pave Way for Broader Presidential Power appeared first on New York Times.
