S. Ct. Agrees to Hear Merits Case on Whether President Has Power to Remove "Independent" Agency Heads (the Humphrey's Executor Overruling Question)

From today's order in Trump v. Slaughter:

The application is also treated as a petition for a writ of certiorari before judgment, and the petition is granted. The parties are directed to brief and argue the following questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey's Executor v. United States, 295 U.S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented from the Court's staying the lower court decision, which had temporarily ordered FTC Commissioner Rebecca Slaughter reinstated.

Comments

[MollyGodiva]

There is nothing in the Constitution that says the president can fire non-political federal employees at will. And don't try that "The executive Power shall be vested in a President" because the powers of the president are enumerated in Article II, and firing people is not there. However the president is "he shall take Care that the Laws be faithfully executed".

[Rossami]

So every president from Washington on down has been in violation of the Constitution? Because every one of them has fired federal employees at one point or another.

Since that's an absurd conclusion, it follows that your starting premise is wrong and that hiring and firing is an inherent part of the execution of executive power.

[JoeFromtheBronx]

I don't think even MG denies that if legislative authorization exists, a president can fire "at will," but the second paragraph still doesn't follow from the first.

[Gregory]

I think the take care clause necessarily means that hiring and firing shall be done, but the idea that the laws themselves can't impose guardrails on hiring and firing seems much weaker to me. It's just not outlined as an article ii power.

[John 4]

Well the cultists, or most of them, do not seem to understand that Congress writes the laws and POTUS enforces them. They seem to legitimately not get that at a fundamental level.

[Jazzizhep]

Well, you know the Constitution trumps laws, right? Or at least should.

I know progs aren’t real fond of that theory.

[SRG2]

And Trump trumps the Constitution. Yes, we know.

[Stupid Government Tricks]

Funny how many times he's actually done what the Supreme Court says.

[John 4]

Absolutely. Now, where do you see the Constitution giving the President the power to fire the FTC Commissioner?

[Widmerpool]

The FTC enforces laws. It decides what the relevant laws mean, and who to enforce (or not enforce) them against. That's an executive function. The executive function is vested solely in the President. Humphrey's Executor relies on the view that these bodies are "quasi judicial" or "quasi legislative", whatever that means.

[Sarcastr0]

The executive function is vested solely in the President

"The executive Power shall be vested in a President of the United States of America"

Huh. I don't see a 'solely.'

Also, for those originalists out there:
https://repository.law.umich.edu/articles/2258/
And
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1614&context=jcl

[Widmerpool]

Ah. And Article III does not say judicial power is vested "solely" in the Supreme Court. So Trump can decide some of this stuff on his own I guess.

[Stupid Government Tricks]

No, that interpretation is solely up to Sarcastr0.

[Macy's Window]

The deed to my house doesn't say that I am the sole owner. But my name is the only one on the deed. Therefore I am the sole owner.

[Patrick Henry, the 2nd]

Given it says "The" and "Shall" its rights there. They didn't need to add solely.

[Patrick Henry, the 2nd]

Correct, but Congress cannot pass a law limiting the Presidents Executive Power. That's the point.

[wvattorney13]

Right. The laws themselves cannot reserve for Congress or some other entity with what is exclusively an executive function: the firing of employees in the executive branch.

[Hyronymous]

You could class this under the Zone of Twilight/Political Questions territory where the branches have some authority to work on their own, without input from the other branches, even where the other branch might be the official owner of the question at hand.

That is to say, the Executive is generally free to manage his employees as he will, minus law to the contrary. But, because of law, the Executive is bound to things like paying overtime, offering pensions, etc. That maintains consistency for employees, through different administrations.

There's no particular reason to think that the Executive couldn't be superseded by the Legislature, up to the point where the Legislature was interfering in the President's ability to make his own choices, within his own domain.

[Riva]

Correction, there are no "pseudo" vesting clauses that empower Congress to make certain subordinate executive employees immune from removal by the Chief Executive.

[wvattorney13]

That's nonsensical. If "the" executive power is vested in a President, and he is powerless to fire a person in the executive branch, then by implication either that person or some other entity is exercising executive power apart from and greater to that of the President.

It would be like saying that a person is hired for "janitorial services" and then smugly pointing out that nothing in the contract says anything at all about mopping floors. It is inexorably a part of executive power to control executive branch employees.

[MollyGodiva]

" It is inexorably a part of executive power to control executive branch employees."
That is not enumerated in the Constitution. Again you are reading a very broad and dictatorial power out of a few vague words.

[Riva]

What the Constitution does is vest all executive power in the President. The President manages the executive branch not Congress. The President can't manage Congressional staff and Congress cannot limit the power of the president to manage executive staff. There are no "quasi" vesting clauses redistributing the separation of powers as devised under the Constitution.

[Patrick Henry, the 2nd]

It is, that is what "executive power" and "vested" means.

[Macy's Window]

LOL. You are really reaching hard.

[SykesFive]

The Framers thought they had to specify in the Constitution that the President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices."

[bernard11]

That's nonsensical. If "the" executive power is vested in a President, and he is powerless to fire a person in the executive branch,

But he's not powerless. He can obviously fire someone for cause. But he can't, in fact, fire anyone he feels like firing for any reason.

Equal protection aside, it is clear that Congress has the power to prohibit firing for some reasons, hence the power to limit grounds for firing.

[Patrick Henry, the 2nd]

But he can, in fact, fire anyone he feels like firing for any reason. That's what "executive power" means.

[Patrick Henry, the 2nd]

There is and it is that exact clause. You don't like it, but "executive power" includes "hiring and firing". It's really easy, sorry.

[Darwinnie]

Tell us you’re going to overrule it without telling us you’re going to overrule it. Foregone conclusion.

[JoeFromtheBronx]

They are slaughtering the proper division of executive and legislative powers. The second question also tosses in judicial:

"Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law."

[John F. Carr]

"Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law."

That surprised me. I think courts should be able to offer at least a declaratory judgment, Pam Bondi is or is not the Attorney General. Kind of an inverse quo warranto.

The Trump administration has one traditional quo warranto case pending that I know of: https://www.courtlistener.com/docket/70806414/united-states-v-ross/

[ah....Clem]

Let's review: Congress created the Federal Trade Comission (FTC) giving the president the authority to remove an FTC commissioner from office for "inefficiency, neglect of duty, or malfeasance in office". Congress did not grant the president the authority to fire a commissioner for "whatever the fuck the president wants to do". At least not in writing.

But it appears that these "originalists" have developed sufficient mind-reading skills to conclude that obviously the founders meant to grant the president the ability to "do whatever the fuck he wants, because he's the president".

Do I have this right?

[Bored Lawyer]

Why don't you study Myers v. United States, 272 U.S. 52 (1926) https://supreme.justia.com/cases/federal/us/272/52/
You might learn something.

PS -- the case was decided 20 years before Donald Trump was born.

PPS. Congress can be limited by the Constitution even in offices it creates. All federal courts except the Supreme Court are creatures of statutory enactments by Congress. Could Congress condition an appointment to the bench that the judge may be removed if he rules the wrong way? Or limit the term to some finite term? Or mandatory retirement at some age?
A: No, it can't.

[JoeFromtheBronx]

Now do Humphreys Executor.

I do think, along with Justices Holmes, Brandeis, and McReynolds (he had his moments), that Myers was wrongly decided.

[MollyGodiva]

SCOTUS was wrong then and wrong now. The dissent got it right. The Constitution does not hide board grants of authority between the lines.

[epsilon given]

SCOTUS should have declared all quasi-departments that blend lawmaking, execution of law, and judgement of law as unConstitutional.

The Constitution vests Executive power into the President, Judicial power in the Judiciary, and Lawmaking power in a Congress, and anything that blends these things interfere with the checks and balances of power.

[SykesFive]

Holding this one in my back pocket for when an Article I judge gets something wrong!

[John 4]

"Could Congress condition an appointment to the bench that the judge may be removed if he rules the wrong way?"

No, and Congress couldn't condition an appointment based on anything that is an actual violation of the separation of powers.

But those possible actions are not the facts of this case. And the Constitution clearly gives some powers re: appointments to Congress. To me that makes the analogy to an extreme, different action not very convincing.

[ah....Clem]

Thanks for the pointer.

It is notable that Taft determined that the constitution was silent on dismissals of appointed officials. To fill in the gaps, Taft performed an exhaustive analysis of the historical context along with quotes from members of the Constitutional Convention. So did the dissenting justices, reaching opposite conclusions. And early case of "originalist" mind-reading?

I think the dissenters had the better argument i.e. if the Senate confirms someone for a fixed term, under the "advise and consent" decree, removing an appointee requires Senate approval. The dissent' usage of the word "caprice" (..it is impossible for me to accept the view that the President may dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the Senate, notwithstanding a positive inhibition by Congress.) seems particularly apt today. I understand that this view did not prevail and Myers is settled precedent. And that my opinion on this is totally irrelevant in the greater scheme of things.

Humphrey, about ten years later, seems to have undone some of the damage. But just as Taft, as a former president, was likely biased towards expansive presidential powers, so are the current members of the Supreme Court, for whatever reason they may have. So, I don't have high hopes for Humphrey.

[epsilon given]

I can't help but think that it's damaging to the will of the People to forbid the Executive from firing Executive people -- it prevents the President from making reform that the People may want. It doesn't really matter if the Senate set a fixed term for the position -- that just means there's a maximum length a person can serve, before having to be re-approved -- and forbidding the Executive from removing people from Executive offices forces the term of the previous President -- who may very well have been defeated in their attempt for re-election -- onto the current Presidential term.

[bernard11]

it prevents the President from making reform that the People may want.

Or may not want. But your argument is worse that that. Any law that restricts the President's power prevents him doing things the "People" may want. Did winning the election make him king?

Also, just because he won the election doesn't mean the "People" want him to do what ever he feels like.

[Patrick Henry, the 2nd]

No but winning the election game his all the "executive power" like firing people.

Congress still has power to approve replacements, and whether the office exists at all.

[y81]

Really, the Supreme Court has been utterly lawless and swollen with arrogance: they regularly instruct, in their best schoolmarmish tone, that lower courts MUST follow S.C. precedent; when lower courts do that, they summarily overrules them without explanation; and now, finally, they will deign to finalize, with a post hoc explanation, the rule they have already declared.

[wvattorney13]

I disagree. Even if we assume, correctly I think, that lower courts have to still follow Humphrey's Executor, it does not follow that a federal employee is entitled to injunctive relief to prevent his or her removal from the position as opposed to backpay once the suit follows the usual process through appellate review (wherein the Supreme Court gets the opportunity to overruled Humphrey's Executor).

What you are claiming is some entitlement to a form of relief prior to a decision on the full merits that is not clear that is available at all even after a complete victory by the Plaintiff.

And when the lower courts are repeatedly reversed on this point, it is disingenuous for them to keep pleading ignorance as if they are stuck in an impossible posture.

[Area Man]

See a lot of feet stomping on here. But Humphrey’s Executor does not require that the official keep their job. It only requires backpay if they’re illegally removed. So no precedent requires the relief given by the district court and DC Circuit. Thus, the Court was acting within the confines of its precedent when it stayed the order to reinstate. You may not like that result, but there was nothing preventing it.

[ah....Clem]

But Humphrey’s Executor does not require that the official keep their job. It only requires backpay if they’re illegally removed.

IANAL, but that's not my reading. Humphrey plainly states that it is constitutional for congress to create agencies that are independent of executive control i.e. a for-cause removal provision to limit the President's removal power is constitutional.

How this would have affected the remedy had Humphrey still been alive when the case was decided is perhaps open for debate, but my reading is that the firing would have been declared illegal and Humphrey (but not his corpse) would be reinstated.

[Area Man]

Maybe. But Humphrey was dead, so the opinion didn’t require reinstatement. Thus, when people say it does, they’re wrong. Therefore, the Court today didn’t act outside Humphrey’s Executor when it stayed the reinstatement order.

[Voize of Reazon]

We have Chief Justice Taft to thank for this. His opinion in Myers relies mainly on the argument that the President's duty under the Take Care clause requires that he be able to fire at will any executive branch official who he feels isn't performing. It's necessary that he have that power to fulfill his duty, the argument goes, so by imposing that duty the Constitution implicitly grants the power.

But faithfully executing the laws also takes money. If Congress passes a law commanding some project the President can't just raid the Treasury, he has to wait for an appropriation. He isn't in breach of his duty if Congress doesn't give him the tools he needs to do it.

There is, after all, no Necessary and Proper clause in Article II. There is one in Article I, so the drafters clearly knew how to write one. If it is Necessary and Proper that the President be able to remove officers, and in most situations it is, then what Taft should have concluded isn't that the President has that power but that Congress has the authority to grant it to him.

[MollyGodiva]

It is absurd to say the Take Care clause which mandates compliance with federal law gives the president the power to violate federal law.

[Area Man]

An unconstitutional law is no law at all. So if the removal provision is unconstitutional, it’s not a violation of federal law. Indeed, to enforce it would be a violation of the Constitution.

[EllaWilson]

McConnel slapped down garland.
President Trump filled the court with justices that can read (and know what a woman is).
All is flowing beautifully.

[F.D. Wolf]

(2) Whether a federal court may prevent a person's removal from public office, either through relief at equity or at law.

This is an important question too. After President Trump fired Hampton Dellinger from his position at the Office of Special Counsel, and Senior District Judge Amy Berman Jackson issued an injunction ordering he be restored to his position, I wrote that I had never heard of a judge purporting to do such a thing. Well, I was wrong, and it turns out it had happened ONCE, in the unreported case of Berry v. Reagan, No. 83-3182, (D.D.C. Nov. 14, 1983). Berry was a member of a temporary commission, and while that case was on appeal, the statutory term of the existence of the commission expired, and the injunction was vacated and the case dismissed as moot. 732 F.2d 949 (D.C. Cir. 1984).

Since the Dellinger case, district judges have repeatedly issued such injunctions, which I believe they have no authority to make. A wrongfully discharged employee can always be awarded backpay, but the danger of allowing a hostile, disgruntled employee to remain in office should be apparent. The landmark cases of Myers v. United States (1926) and Humphrey's Executor v. United States (1935) were only over pay owed. Neither Myers or Humphrey asked to have his position restored, nor is it particularly likely any judge would have purported to have the authority to order it.

[pts]

The questions presented by the Supreme Court indicate, to me at least, an attempt to bring these issues back to traditional law and equity. No one has a statutory or constitutional right to have a certain person in a certain government office. The only person with a legal right to challenge a firing by the executive is the person fired. The legal remedy is back pay. The equitable remedy, court ordered reinstatement, is a remedy only available in unique circumstances (under common law). The right of an appointee to have their opinions carry the day is no more compelling than an employee with a for cause contract being fired, arguing that they have a better understanding of supply chain management than does the employer. The issue is one of remedy. Having your opinion carry the day is not a remedy the court should be involved in.

[pts]

Stated otherwise, Humphreys Executor should be limited to its facts. No reason to overrule.