Justices hand the president more unchecked power

Monday’s ruling upends 90 years of precedent on independence of agencies

- ERWIN CHEMERINSKY

IN A STUNNING expansion of presidential powers, the Supreme Court on Monday overruled a 90-year-old precedent and held that Congress cannot limit the president's removal of federal agency heads.

The ruling in Trump vs. Slaughter is a major diminishing of checks and balances and again shows the six conservative justices’ disregard for even long-standing precedents.

In 1935, in Humphrey’s Executor vs. United States, the court unanimously held that Congress could prevent the president from firing commissioners on the Federal Trade Commission unless there was just cause. The court explained that Congress, to carry out its powers, could create federal agencies with some independence from the president and thus could limit removal of commissioners only “for inefficiency, neglect of duty, or malfeasance in office.”

On many subsequent occasions, the Supreme Court reaffirmed this holding. For example, in 1988, in Morrison vs. Olson, the court in a 7-1 decision held that Congress could authorize the appointment of an independent counsel to investigate alleged wrongdoing by the president or high-level executive officials and could limit firing to where there was found to be just cause.

Then-Chief Justice William Rehnquist, a staunch conservative, wrote the opinion for the court. In it, he explained that, “In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the President ‘illimitable power of removal’ over the officers of independent agencies. Were the President to have the power to remove FTC Commissioners at will, the ‘coercive influence’ of the removal power would” threaten independence of the commission.

But Humphrey’s Executor is no more.