3 SCOTUS Justices Seen as Key Votes on President's Removal Powers
Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett are likely the key votes as the U.S. Supreme Court considers Humphrey’s Executor, the 1935 decision that allows Congress to limit a president’s ability to remove senior officials, TechFreedom Internet Policy Counsel Corbin Barthold wrote Tuesday in The Bulwark. “For as long as modern conservative legal thought has existed, there has been a campaign to overturn Humphrey’s Executor,” Barthold wrote. “The decision, which sustained a provision that insulated the five leaders of the [FTC] from being removed without cause, became the foundation for so-called independent agencies,” but it’s not “a strong decision,” he said. President Franklin Roosevelt saw it as “an effort to rebuke him” by a then-conservative SCOTUS, and “modern legal scholars tend to agree.”
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President Donald Trump's dismissal of Gwynne Wilcox, a Democratic member of the National Labor Relations Board, presents an early test, Barthold said. “The Roberts Court has been steadily chipping away at removal protections," and "whether through Wilcox’s case or another one, Roberts, Kavanaugh, and Barrett will soon have the opportunity to complete a great conservative legal quest: overturn Humphrey’s Executor altogether and hand the president the power to fire any officer at will.”
That could lead to Trump firing all Democratic commissioners, including at the FCC (see 2502210052), he said. “While that would be bad, it would not be apocalyptic,” Barthold wrote. “The president already appoints agency heads, who tend faithfully to implement his agenda. The new chairs of the FTC and the FCC have happily made clear that, removal protection or no, they intend to display no independence whatsoever.” Barthold described the three justices as “genteel conservatives with no deep attachment to Trump or his movement," who ultimately control the direction of the court.