Trump’s control over independent agencies tees up test of presidential power

President Trump’s efforts to expand control over independent agencies tees up a new test of presidential power that is already making its way through the courts.

This week, the president signed an executive order that requires independent agencies to submit proposed regulations to the White House for review, and Trump has fired several Democratic appointees at the various bodies since taking office.

The moves erode those agencies’ traditional insulation from the political impulses of the White House, instead advancing the so-called unitary executive theory, which provides the president total control over the executive branch.

Legal observers anticipate it could set the stage for the Supreme Court to overturn its 90-year-old precedent, called Humphrey’s Executor v. United States, that has enabled Congress to protect certain independent agency leaders from termination without cause.

“Humphrey’s Executor, I think, is on the chopping block,” Ben Flowers, Ohio’s former solicitor general, said at an event last week hosted by the conservative Federalist Society.

In the latest signal the new administration is prepared to aggressively fight any legal challenges, the Justice Department quickly brought an emergency motion to the high court seeking to greenlight Trump’s firing of the head of the Office of Special Counsel.

The Supreme Court on Friday declined Trump’s demand, for now, by punting it.

But other lawsuits waiting in the wings filed by Democratic appointees fired by Trump at the National Labor Relations Board (NLRB), the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB) may reach a different fate. Those cases, too, could soon reach the high court.

Humphrey’s Executor dates to 1935, after then-President Franklin Roosevelt sought to fire Federal Trade Commission (FTC) member William Humphrey for not supporting the New Deal.

Humphrey died before the Supreme Court could decide the case, but the executors of his estate pressed on and won. The court ruled the FTC’s removal protections were constitutional, so Humphrey’s firing was not allowed.

Now, several justices among the Supreme Court’s conservative supermajority have expressed doubts about whether such removal protections encroach on the president’s authority to oversee the executive branch.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, in 2020 explicitly called for the precedent to be overturned and expressed hope the court in the future will “have the will to do so.”

“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” Thomas wrote at the time.

Justice Brett Kavanaugh criticized the precedent when he served on a lower bench, which came under the spotlight when Trump nominated him to the Supreme Court during his first term.

“That's a change in the way things were, from, for example, 40 years ago,” noted Flowers, pointing to when the Supreme Court in 1988 upheld protections for independent counsels and the late conservative Justice Antonin Scalia famously dissented alone.

Today’s conservative-majority Supreme Court has already made moves to limit precedent’s reach.

In 2020, the court in a 5-4 decision struck down removal protections for the Consumer Financial Protection Bureau’s singular director, distinguishing that Humphrey’s Executor only applies to multi-member commissions. The next year, the court invalidated the similarly structured Federal Housing Finance Agency.

However, the court in those cases declined to outright overrule Humphrey’s Executor, leading some legal observers to believe it may not necessarily on its death bed.

“It's premature to write the obituary for Humphrey’s Executor,” said Beau Tremitiere, counsel at Protect Democracy, an anti-authoritarian organization backing multiple lawsuits against Trump’s efforts to reshape the federal bureaucracy.

“The historical and normative case for insulating key government functions from political meddling are compelling,” Tremitiere added.

But any such defense won’t be coming from Trump’s administration.

Last week, the Justice Department sent a letter informing Sen. Dick Durbin (D-Ill.), the ranking member of the Senate Judiciary Committee, that the administration would no longer defend removal protections for independent agency leaders.

“I am writing to advise you that the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional, and that the Department will no longer defend their constitutionality,” acting Solicitor General Sarah Harris wrote.

This week, Harris led the new administration’s first Supreme Court emergency appeal, which sought to greenlight the firing of U.S. Special Counsel Hampton Dellinger, whose office is tasked with protecting whistleblowers and prosecuting misconduct in the federal workforce, including violations of the Hatch Act.

A lower judge temporarily reinstated him, and the Supreme Court declined to disturb the ruling. But the high court’s decision was rooted in procedural concerns that may not pose an issue if the case or others return to the justices in the future.

Just behind Dellinger’s case is a lawsuit over Trump’s firing of Cathy Harris, the Biden-appointed chair of the MSPB, which hears appeals of disciplinary actions against federal employees. The Justice Department on Thursday appealed an order temporarily reinstating her, and the case is now one level away from the Supreme Court.

Legal observers also view the lawsuit filed by Biden appointee Gwynne Wilcox as another potential vehicle to reconsider Humphrey’s Executor. Wilcox chaired the NLRB, which enforces federal labor law.

Wilcox hired as her attorney Deepak Gupta, who regularly brings cases to the high 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,” Gupta wrote in the lawsuit.

“Although Ms. Wilcox has no desire to aid the President in establishing a test case, she is also cognizant of the fact that, if no challenge is made, the President will have effectively succeeded in rendering the NLRA’s protections — and, by extension, that of other independent agencies — nugatory,” it continued.

A hearing is set for March 5.

Beyond those agencies, overturning Humphrey’s Executor could pose much broader ripple effects across the federal government, including throwing into doubt the Federal Reserve Board’s independence from the White House.

“Removing protections for monetary policy, highway safety and other core government functions from political meddling isn't an academic question,” said Tremitiere. “In 2025, the court can see in real time the costs of abuses of executive power.”

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