Former Education Dept employees grieve for recently laid-off workers
Former Education Dept. employees reflected on the recent layoffs and voiced concerns for the future.
It usually follows the same pattern.
First, an aide to President Donald Trump emails a leader of an independent agency to fire them. Then the leader sues, citing a law on the books that protects them from getting fired without cause. So the Trump administration shoots back that the law is unconstitutional. And they fight it out in court.
Legal observers following the trend think Trump is setting up a test case for the Supreme Court to revisit a 1935 decision that prevented a president from firing a member of Federal Trade Commission and paved the way for independent boards like the Federal Reserve to wield their power freely.
“I think the game is get it up to the Supreme Court,” said Thomas Berry, the director of constitutional studies at the libertarian Cato Institute. “And I think to some extent this is going to force the court’s hands.”
Among other roles, these boards set interest rates, insure bank accounts, protect children from unsafe toys, investigate airplane crashes, regulate public airwaves, enforce workplace discrimination laws, block federal workers from illegal firings, and allow workers to form unions.
The Supreme Court precedent, called Humphrey’s Executor, protects technical experts who run those agencies from political influence, but Trump and his supporters say limiting a president’s power to fire independent board members is an unconstitutional restriction of his executive power.
Trump has fired at least seven people who sit on independent boards because he disagrees with their views, even though laws passed by Congress protect them from serving at the pleasure of the president. Most have sued to block their firings. Judges don’t always agree on whether the firings are valid.
“All of these (cases) are going to ultimately get consolidated up at the Supreme Court,” said Michael Elkins, a lawyer who represents management in labor disputes.
Six of the Supreme Court’s nine justices were appointed by Republican presidents, and three by Democrats. All six conservatives supported increasing presidential power in a historic decision last year, and five sided in with the Trump administration in 2020 on a case involving similar job protections.
“You don’t have to be a legal scholar to read those tea leaves,” Elkins said. “You’re probably going to get a 6-3 decision going Trump’s way.”
What is Humphrey’s Executor?
Humphrey’s Executor vs. United States started in 1933 when President Franklin D. Roosevelt became dissatisfied with William Humphrey, a member of the Federal Trade Commission, which is designed to protect consumers against monopolies.
Humphrey was appointed by Republican President Calvin Coolidge and the Senate confirmed him to his six-year term. The law said he could only be fired for “inefficiency, neglect of duty or malfeasance in office.” But Roosevelt, a Democrat, didn’t agree with Humphrey’s politics and twice asked him to resign. Humphrey refused. Finally, Roosevelt fired him.
Humphrey rejected the firing, kept showing up for work, and sued the government, saying his firing was illegal. When Humphrey died, his estate took over the case, went to the Supreme Court, and won. The unanimous ruling has reined in executive power over independent boards for nearly a century.
“If the high court reverses almost 100 years of precedent about independent agencies, then President Trump could gain sweeping power to fire agency leaders without any cause,” said Mike Sozan a senior fellow at the Center for American Progress, a liberal think tank.
Sozan pointed to the Consumer Product Safety Commission, the National Transportation Safety Board, the Federal Election Commission, and the Federal Communication Commission, among others.
Berry of the libertarian Cato Institute, said he wants to see the ruling overturned. He said Congress went overboard creating independent agencies to administer new rights granted under Roosevelt’s New Deal, and in the process invented “this sort of fourth category” of government.
“The opposing view that I hold — and I think Chief Justice (John) Roberts and the majority of the Supreme Court holds — is that there is no room for quasi-branches in the Constitution,” Berry said. “That is a bright line.”
Who has Trump fired?
Trump took his biggest swing at Humphreys Executor in a March 18 email firing Rebecca Slaughter and Alvaro Bedoya, two Democratic members of the Federal Trade Commission. His aide forwarded a letter from Trump arguing that the Supreme Court decision doesn’t apply to them.
“Your continued service on the FTC is inconsistent with my Administration’s priorities,” Trump wrote in conclusion, mirroring the argument that Roosevelt used in 1933. “Accordingly, I am removing you from office pursuant to my authority under Article II of the Constitution.”
Both commissioners are suing, saying the firings are illegal and Humphreys Executor protects them. “As Humphrey’s Executor recognized, providing some protection from removal at the President’s whim is essential to ensuring that agency officials can exercise their own judgment,” the lawsuit says.
The Trump administration has not filed a response to the lawsuit, but Trump said in the termination email that Humphreys Executor was a very narrow decision that does not apply to the current FTC.
“Any decision to overrule Humphreys could destabilize financial markets, shake investor confidence, lead to reckless monetary policy dictated more by political considerations than economic expertise,” said Amrit Agarwal, special counsel for Protect Democracy, a cross-partisan organization that is representing the commissioners. “In particular, it could endanger the Federal Reserve, which is an incredibly important institution for the American economy.”
Trump previously fired:
- Two Democrats on the Equal Employment Opportunity Commission, which handles workplace discrimination complaints.
- A Democratic member of the Federal Labor Relations Authority, which handles disputes between federal labor unions and the government.
- A Democratic member of the National Labor Relations Board, which handles disputes between private sector unions and employers.
- A Democratic member of the Merit Systems Protection Board, the first stop for federal employees seeking to complain about allegedly illegal treatment.
District court judges reinstated members of the National Labor Relations Board and the Merit Systems Protection Board, but the Trump administration appealed to pause those decisions and won. The boards don’t currently have enough members to constitute a quorum.
Will a new case go to the Supreme Court?
The case from the fired FTC commissioners, Slaughter and Bedoya, is in federal District Court in Washington, D.C. They’re asking the judge to reinstate them and declare that it’s illegal for Trump to fire an FTC commissioner. No judge has ruled.
A judge reinstated Susan Grundmann to her post on the Federal Labor Relations Authority in March. In her decision, the Biden-appointed judge rejected the Trump administration’s arguments on Humphreys Executor and more recent precedential cases. The Trump administration hasn’t appealed.
The administration did appeal decisions to reinstate Cathy Harris to the Merit Systems Protection Board and Gwynne Wilcox to the National Labor Relations Board. A three-judge panel in the D.C. Circuit Court of Appeals heard the two cases together. Two judges agreed with the Trump administration, effectively re-firing the two women.
The Trump-appointed judge on the panel agreed strongly with the administration, while an appointee of Barack Obama disagreed strongly. The tie breaker was a George H.W. Bush appointee who framed the decision as a close one, but still tipping toward the Trump administration.
Judge Karen LeCraft Henderson, the tie breaker, called it “incongruous” to expect the president to fulfill his constitutional duties with board members who have different political views who might make that job difficult or impossible.
“Sadly, I think that there was a bit of a template created” for the Supreme Court in the appeals court decision, said Sozan.
Berry said that while people supporting keeping Humphreys Executor might be afraid to go all the way to the Supreme Court for fear that it could get overturned, “Trump is not afraid of that conflict.”
The White House did not respond to a request for comment.
Harris and Wilcox are now asking for the full D.C. Circuit Court to hear their cases. If the court declines to do so, the women would have to appeal their firings to the Supreme Court to be reinstated.