Supreme Court Protects President’s Right to Fire Agency Heads

SCOTUS Blog: The Supreme Court on Wednesday cleared the way for the Trump administration to remove three of the five members of the Consumer Product Safety Commission from office while their challenges to their firings continue …. The decision to grant the Trump administration’s request to be able to fire the MSPB and NLRB board members, the majority explained, “reflected ‘our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.’” That reasoning applies equally to the CPSC commissioners, the majority wrote, when the CPSC “exercises executive power in a similar manner as the” NLRB, “and the case does not otherwise differ from Wilcox in any pertinent respect (SCOTUS Blog).

Newsweek calls this Donald Trump’s 16th SCOTUS win in a row. That may have more relation to the quality of challenges to executive authority than to its uses, however. Once again, this revolves around the question of whether an agency that exercises executive power has legal status independent of the chief executive, ie, the President. An entire series of challenges this year to Trump’s efforts to clean house in the executive branch have relied on a 1930s-era precedent, Humphrey’s Executor, which established separation between so-called independent agencies and presidents when it came to firing appointees. Two months ago, the court issued a preliminary ruling in Trump v Wilcox that all but declared the Humphrey’s Executor precedent a dead letter (Hot Air).