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As the many lawsuits attempting to slow the Trump administration’s autocratic roll wend their way toward SCOTUS, an overarching theme is emerging—and a 90-year precedent is looking more and more vulnerable.
For almost a century, federal government agencies have been structured and organized on an understanding of institutional independence that rests in large part on the staff members of those agencies being insulated from political firings. The new administration has unleashed a brazen attack on multiple agency heads, inviting lawsuits that set the Supreme Court’s recent fondness for vesting more power in the presidency on a track to meet Donald Trump’s belief in unbounded, kinglike presidential power. This week on Amicus, Dahlia Lithwick spoke with Deepak Gupta, the founding principal of Gupta Wessler LLP and former senior counsel at the Consumer Financial Protection Bureau. He represents Gwynne A. Wilcox, a Joe Biden appointee who was fired via late-night email in what she claims was a violation of the National Labor Relations Act. He also represents the unions for the almost 200 CFPB employees who were fired. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Can you make us many IQ points smarter by explaining the case from 1935, Humphrey’s Executor v. United States, that is so central to these cases challenging President Trump’s belief that he has the power to fire whomever he wants? Tell us what this case is, why it mattered, what it has held, why it’s been good law for so long, and why it’s such an important target for the Trump administration.
Deepak Gupta: This is a precedent that goes back 90 years, and the federal government has very much been structured around it. The case involved a guy named Humphrey—it’s called Humphrey’s Executor because he had died by the time the case came to the Supreme Court. His widow and family were looking for back pay because, they argued, President Roosevelt had improperly fired Humphrey. They argued he was protected from removal by one of the federal laws that insulates the independence of the agencies. The agency in question was the Federal Trade Commission, which still, of course, exists today, and is a really important agency that handles antitrust and consumer protection.
So the question before the Supreme Court in 1935 was a question that we’re now facing again today, which is: Does it infringe on executive power for Congress to design an agency that protects this person from removal? The Constitution actually doesn’t say anything about removal. It doesn’t expressly say that the president has the ability to remove people; that understanding that the president has some power to remove is itself part of the tradition and understanding that has developed concerning the separation of powers over time.
Similarly, what the Supreme Court said in Humphrey’s Executor is that when you have an agency like the FTC, which is a multi-member body that is doing things that are not purely executive, but are quasi-legislative, and also adjudicative—they’re deciding cases—this is an arrangement that is consistent with the Constitution.
Congress has relied on that precedent over and over again. All three branches have relied on Humphrey’s Executor when structuring agencies, like the Nuclear Regulatory Commission and the Federal Reserve Board (which sets interest rates). That’s the understanding that we have through to today, and that is what President Trump is pretty brazenly challenging.
I guess it’s worth noting that the Supreme Court has been chomping away at Humphrey’s Executor in recent years. Can you give a sense of why that is, and—based on the trajectory of these recent cases—how many justices you think are ready to just overturn it outright?
It is accurate to say that the court has been chipping away at the idea of independent agencies, and this has been a priority of the conservative legal movement to expand executive power.
There was an important case involving the Consumer Financial Protection Bureau a few years ago where the court said, basically, “Humphrey’s Executor doesn’t apply to the CFPB because it’s a single-director agency.” In doing so, the court distinguished cases where you have a multi-member commission. So I think it’s fair to say that Humphrey’s Executor is still good law, it’s still the law of the land, it’s still precedent.
Now, I may well be in the position of having to get as many votes on this Supreme Court as possible to retain Humphrey’s Executor as precedent, so I don’t want to do the vote counting thing. But I will say conventional wisdom out there is that Humphrey’s Executor as precedent is on life support. I have some optimism, because I think that the prospect that the president could threaten to fire, or indeed just fire, the head of the Federal Reserve Board for political reasons is something that would give many, perhaps a majority, of the justices pause. And that doesn’t feel like a hypothetical now, does it? It feels like something that could happen.
That feels like something that could happen next Tuesday. This has all taken place really quickly. One oddity of how this is manifesting is that we have had, for many years, individual judges and justices treating a lone Scalia dissent in 1988 in Morrison v. Olson as though it’s a majority opinion.
Now we have Trump’s Department of Justice treating Humphrey’s Executor as though it’s already been overturned, and there is this weird wishcasting jurisprudence that we’ve seen work its way through the system before. It’s this way of aggressively litigating to shape the narrative. We’ve seen it in multiple cases—right now mifepristone comes to mind, and this move of pretending that the Comstock Act is still good law. I’m interested to hear your thoughts on what strikes me as a deeply cynical ploy. Am I imagining it, or is this happening?
You’re not imagining it. I have never seen the federal government do something like this, to this degree. They started off the administration by declaring that, Yes, there are all these laws that prevent the president from removing these people, but you know what? We’re just going to do it anyway.
The letters that the administration sent out, like the letter sent to my client, Gwynne Wilcox, at the NLRB, essentially say, “We recognize there’s a statute that says we can’t do this, but we think the vesting clause of the Constitution that vests the executive power in the president allows us to do this anyway.” So it invites test cases to challenge the validity of that precedent, and it puts people like my client, Gwynne Wilcox, in a box.
Because if everyone were to say, “We know this is a trap, we don’t want to walk into it, so we don’t want to challenge these firings,” then the president would have accomplished the very thing he seeks. Trump would render Humphrey’s Executor a dead letter because he can just fire all these people, and he’s continuing to fire people who have these protections across the government. So whether we like it or not, we have to set up these potential test cases for the president.
What you’re describing is a kind of a “Make Me” jurisprudence, where the administration is happy to force the fight because they’re pretty sure they’re going to fish their wish—but even if they don’t force the fight, they get what they want anyway. It’s hard to highlight how bizarre that is as a posture in a world where the rule of law stands for something, but that’s where we are.
How does all this dovetail with this long history of the thing we call the “unitary executive theory,” which has been working its way through the legal academy for decades now? Could you explain the various flavors of unitary executive? There’s sort of a decaf unitary executive, about the president’s control over departments and agencies, and then a half-caff version that suggests the president can break the law in, for instance, some exigent national security moments, and then there’s the full-on triple-espresso version that’s being advanced now.
I don’t know that I can do better than your typology there, but this is the apotheosis of the unitary executive theory, the idea that the Constitution vests the executive power in the president, which of course it does. But further, the claim is that that means that the president can, regardless of what Congress has said, remove people who are insulated from political firing, disregard civil service norms, disregard arrangements with federal sector labor unions.
Stephen Miller said the other day that the whole of the democratic will is vested in the president alone and no one else. As he put it: “The Constitution, Article 2 has a clause known as a vesting clause, and it says the executive power shall be vested in a president—singular. The whole will of democracy is imbued into the elected president. That president then appoints staff to then impose that democratic will onto the government.”
So Miller is saying the president has essentially boundless authority over anything that can be regarded as within the executive branch, and that really sheds a whole lot of law. It also sheds a whole lot of norms.
I hate to be having a conversation about norms—it brings me back to six years ago, when we talked about emoluments. But I think a lot of what’s happening here is that no one has quite been brazen enough to brandish this theory in this way before. It dares everyone to run into court to test what they’re doing. If you don’t care about norms, it’s a very clever strategy. And it’s kind of working, and it’s already straining the legal resources available to challenge it.
