As you may have heard, the Supreme Court has granted certiorari in Trump v. Slaughter, a case in which a Federal Trade Commissioner whom President Trump purported to fire has sought reinstatement to her position. The Court directed the parties to brief two 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.
In the meantime, cases involving Trump’s purported removal of members of other “independent agencies” and various multimember boards are still kicking around in the lower courts. In addition, there is at least one case involving the purported removal of an individual official, the registrar of copyrights at the Library of Congress.
Allowing the president to exercise at-will removal of the members of agencies such as the FTC, the Merit Systems Protection Board, the Consumer Product Safety Commission, the National Labor Relations Board, and (perhaps) the Federal Reserve will dramatically alter the nature of the various statutory schemes in which these bodies were established. Presidential control of these agencies could transform them into arms of the executive branch and allow them to be used for purposes entirely foreign to that intended by Congress.
When the Supreme Court first considered the constitutionality of a restriction on the president’s power of removal, in Myers v. United States, 272 U.S. 52 (1926), Chief Justice Taft reached out to the Senate to see if it wished to designate an amicus to represent its interests and, when that appeared impracticable, appointed a sitting senator “to present the views of the legislative branch of the government.” In more recent years, the Court has declined the suggestion to appoint an amicus specifically to represent the interests of Congress, but in cases where the parties agreed that the removal limitation was unconstitutional it has appointed an amicus to defend the constitutionality of particular statute in question. In one case, Seila Law LLC v. CFPB, 591 U.S. __ (2020), the Bipartisan Legal Advisory Group of the House of Representatives also filed an amicus brief supporting the validity of the removal limitation at issue, noting that “the House has a strong interest in defending the validity of the CFPB Director’s removal protection—and the many similar provisions found throughout the U.S. Code.”
In the Slaughter case there is genuine adversity between the parties regarding the constitutionality of the removal limitation so the Court presumably will not appoint an amicus at all. Moreover, it is unlikely (though not impossible) that either the House or Senate will file amicus briefs in the case due to the difficulty in crafting an institutional position that can survive the political hurdles necessary to authorize the filing of a brief. In the Senate, the brief would need to be approved by the Senate Joint Leadership Group (or by a vote of the Senate itself) and therefore would need bipartisan agreement. In the House, BLAG could approve the brief on a party line vote, but it is unlikely that the Republican majority will want to file anything that might offend the Trump administration. Individual members, of course, can file amicus briefs, but these tend to reflect narrow perspectives and are often filed mostly to make a political statement.
This is unfortunate because the Slaughter case will have ramifications for Congress that go well beyond the particular statute in question or even removal protections in general. Moreover, the parties do not have an incentive to advance some of the congressional interests at stake and, indeed, may not even be aware of them. And Congress itself will not have an opportunity to think about the potential ramifications of the case until it is too late.
One of the more obvious congressional interests at stake is the reliance that Congress has placed on Humphrey’s Executor and its progeny in the 90 years since that case was decided. As the House pointed out in Seila Law:
During that time, Congress has created more than two dozen agencies with explicit for-cause removal protections. The statutes creating those agencies were enacted by twenty different Congresses and signed by twelve Presidents, Republicans and Democrats alike. For-cause removal protections thus reflect an established practice accepted by all three branches and deeply integrated into our governmental structure.
Brief for Amicus Curiae the United States House of Representatives in Support of the Judgment Below at 30, Seila Law (No. 19-7) (citation omitted).
It is not just the for-cause removal protections themselves that will be affected by the Court’s decision, however. Congress also relied upon the validity of these protections in how it structured these agencies and in the powers and duties it assigned to them. Striking down the removal protections while leaving the rest of the statutes intact will in effect enact an entirely new statutory scheme that was never approved by Congress. As was perceptively pointed out in an amicus brief filed by a group of Republican senators, “the CFPB was designed to remain independent from the political branches” and “[s]evering the CFPB Director’s for-cause removal protection from the rest of the Act would therefore create an entirely new system—one that was never legitimized though bicameralism and presentment.” Amicus Brief of U.S. Senators Mike Lee, James Lankford, and M. Michael Rounds Supporting Petitioner at 11, Seila Law (No. 19-7) (emphasis in original). Thus, “a proper respect for congressional authority requires that Congress be allowed to determine, at least in the first instance, how to respond to a holding that any provision of a federal statute is unconstitutional.” Id. at 14.
The Court paid no heed to this admonition in Seila Law, instead concluding with unwarranted confidence that Congress would have preferred a “dependent CFPB” to “no agency at all.” It is not clear how the Court will be able to even make such a cursory judgment regarding dozens of statutes that were enacted (and amended) at different times, all based on an assumption of agency independence that the Court could now upend. Furthermore, these statutes were enacted at times when there were expectations that presidents would not use their powers in ways that even the most enthusiastic supporters of the unitary executive would recognize as improper. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1837 (2023) (“the Constitution implicitly constrains the President’s discretion to exercise constitutional powers, including removal” through, among other things, his oath to faithfully execute the office). It should not be controversial to note that these expectations no longer hold.
Exactly how Congress should respond to this challenge and how it might ask the Court to frame its opinion to preserve congressional authority are matters on which reasonable people may disagree. But it is not a partisan issue or one that necessarily breaks along ideological lines. Crafting an institutional position that could command bipartisan support in Congress may an impossible task, but we will not know unless someone tries.