President Trump's firings this week of the two Democratic members of the Federal Trade Commission drew fresh outrage from people who view the terminations as blatant abuses of power, and renewed assertions from the White House that the president has the authority to fire such officers at will.
Already, Trump's removals of Democrats at the Merit Systems Protection Board, the National Labor Relations Board, the Federal Labor Relations Authority and other independent agencies have been challenged in federal court.
Now, it appears likely one of those cases will reach the Supreme Court. With several cases in the running, the question is which might get there first. The fired FTC commissioners have vowed to sue as well.
Members of independent agencies fired by Trump
Jan. 27
Equal Employment Opportunity Commission
Fired Democratic Commissioners Charlotte Burrows and Jocelyn Samuels have not yet challenged their firings.
National Labor Relations Board
Democratic board member Gwynne Wilcox has since been reinstated by U.S. District Judge Beryl Howell. The D.C. Circuit is weighing the Trump administration's appeal.
Privacy and Civil Liberties Oversight Board
Democratic members Travis LeBlanc and Edward Felten have challenged their firings. U.S. District Judge Reggie Walton has scheduled a hearing for April 30. Trump also fired Democratic Chair Sharon Bradford Franklin, but she did not challenge her firing.
Jan. 31
Federal Election Commission
Democratic Chair Ellen Weintraub has not yet challenged her firing.
Feb. 7
Office of Special Counsel
Special Counsel Hampton Dellinger was reinstated by U.S. District Judge Amy Berman Jackson and then removed again by the D.C. Circuit. On March 6, Dellinger ended his legal fight.
Feb. 10
Merit Systems Protection Board
Democratic member Cathy Harris has since been reinstated by U.S. District Judge Rudolph Contreras. The D.C. Circuit is weighing the Trump administration's appeal.
Federal Labor Relations Authority
Democratic Chair Susan Tsui Grundmann has since been reinstated by U.S. District Judge Sparkle Sooknanan.
March 18
Federal Trade Commission
Democratic Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya say they will challenge their firings.
White House prepared for Supreme Court fight
Asked about the firings of FTC Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya, White House press secretary Karoline Leavitt said on Wednesday that "the time was right to let these people go," adding that the White House was prepared "to fight it all the way to the Supreme Court."
On Thursday, a group of lawmakers including Democratic Sens. Amy Klobuchar and Dick Durbin called on Trump to rescind the FTC terminations.
"This action contradicts long standing Supreme Court precedent, undermines Congress's constitutional authority to create bipartisan, independent commissions, and upends more than 110 years of work at the FTC to protect consumers from deceptive practices and monopoly power," stated their letter signed by 28 senators.
The executive branch includes more than 50 independent agencies and government corporations. Many have historically operated with a degree of autonomy granted by Congress.
The structure of some of these agencies, with members of both major parties serving staggered terms, has helped ensure some distance and independence from the White House. The officers Trump has tried to fire since January mostly had months and years left in their terms. In some cases, the terminations have left boards with only Republican members.
A 90-year-old Supreme Court decision has protected commissioners
The question that these firings raise is whether a Supreme Court decision known as Humphrey's Executor v. United States should stand. In 1935, the court unanimously upheld Congress' requirement that presidents can fire members of independent boards or commissions only for cause, such as inefficiency, malfeasance or neglect of duty.
The case involved a conservative member of the FTC, whom President Franklin D. Roosevelt saw as standing in the way of his New Deal policies. William Humphrey died shortly after Roosevelt fired him, so it was his executor who sued the government and won.
But the court's current conservative supermajority has been chipping away at that precedent, so the Trump administration could prevail if this gets to the Supreme Court.
The Justice Department maintains that the restrictions established by Humphrey's Executor don't apply to today's FTC or other multimember regulatory bodies, given the power those agencies now wield.
In February, acting Solicitor General Sarah Harris wrote in a letter to Durbin, the top Democrat on the Senate Judiciary Committee, that those commissions, in their present form, exercise substantial executive power, including through rulemaking and issuing unilateral decisions.
"An independent agency of that kind has 'no basis in history and no place in our constitutional structure,'" Harris wrote, quoting a more recent Supreme Court decision that established that the president could remove the single director of the Consumer Financial Protection Bureau for reasons other than cause. "To the extent that Humphrey's Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President's behalf."
In the CFPB case, the court limited its decision to agencies with a single director. But Harris' letter said the Justice Department believes removal restrictions at agencies with multimember commissions are also unconstitutional.
Independent agencies work for the public good
Though the independent agencies are not all household names, their work touches the lives of everyday Americans in numerous ways.
The FTC, for example, investigates unfair or deceptive business practices such as price-fixing and the use of noncompete agreements by employers. It reviews mergers to make sure they don't limit consumer choice.
The Equal Employment Opportunity Commission reviews complaints from workers about discrimination on the job. The National Labor Relations Board hears disputes between employers and workers who band together to seek better wages and working conditions. The Merit Systems Protection Board hears cases involving federal employees who believe they were wronged by the government.
"These agencies need to be able to operate with a level of independence so that they can do the work for the American people and not be puppet masters" serving the president's allies, says Jared Davidson, counsel for the nonpartisan, nonprofit legal advocacy group Protect Democracy, which works to counter authoritarianism.
Bedoya, one of the two FTC commissioners removed on Tuesday, warned that billionaires such as Elon Musk, Mark Zuckerberg and Jeff Bezos, all of whom attended Trump's inauguration, will benefit from his firing and that of his co-commissioner, Slaughter.
"I am currently suing or enforcing court orders against each of their companies," Bedoya said in an interview on NPR's Morning Edition, adding that any of those actions could be withdrawn by the Republican commissioners still at the FTC.
Dire warnings about the Fed
With legal challenges making their way to the Supreme Court, some lawyers and scholars are issuing dire warnings about the consequences of overturning Humphrey's Executor.
"It would be absolutely disastrous for the American people if the court decides to give the president carte blanche to ignore the clear mandate of Congress and turn these independent agencies into essentially groups of political cronies," says Davidson.
If the Supreme Court overturns Humphrey's Executor, he warns, there would be little standing in the way of Trump firing members of the Federal Reserve Board of Governors if he disagreed with their policies or wanted the Fed to take some specific action, which could destabilize the economy.
It's a warning echoed by a group of law professors in an amicus brief filed with the Supreme Court.
Quoting from a law review article by Harvard Law professor and former Fed governor Daniel Tarullo, they note that the Fed "would obviously be among the many agencies whose constitutionality would be under a cloud."
"The functioning of the Federal Reserve is essential to the stability of the American economy," the law professors wrote. "Concerns (warranted or unwarranted) that its operations could be disrupted could foster financial and political instability and cause lasting harm."
In another amicus brief filed in a separate case, the law professors give a chilling example of how the Fed's operations might be disrupted.
"There are times when a political leader seeking re-election will prioritize short-term economic activity over long-term price stability. A president may, for example, want unemployment to go down and economic activity to increase in the run-up to voting," they wrote. "More accommodative monetary policy can achieve those effects but also will increase the risk of higher levels of inflation in the future."
On Wednesday night, after the Fed kept interest rates unchanged, Trump posted a message on social media second-guessing that decision.
"The Fed would be MUCH better off CUTTING RATES as U.S. Tariffs start to transition (ease!) their way into the economy. Do the right thing," he wrote on Truth Social.
Fed Chair Jerome Powell, whom Trump appointed in 2018, has previously said he and his colleagues are guided only by economics in their decision-making. During Trump's first term, Powell showed a willingness to ignore Trump's criticism, and last November he said he would not resign if Trump called on him to do so. Powell's term expires in 2026 but could be extended.
Bedoya, speaking to NPR, warned that Trump could make that decision for Powell should Humphrey's Executor be overturned.
"People need to understand if I can be removed for any reason at any time, so can Jerome Powell at the Fed," said Bedoya. "And so it's not just about small businesses and consumers. It's also about retirees and investors and their life savings in the stock market."
Editor's note: Amazon is among NPR's recent financial supporters.
Have information you want to share about ongoing changes across the federal government? NPR's Andrea Hsu can be contacted through encrypted communications on Signal at andreahsu.08.
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