What's Up With Trump Firing Democratic Members of the FTC, EEOC, NLRB and Other Agencies?

 At least since Congress created the Interstate Commerce Commission to regulate railroads in 1887, Congress has relied on multi-member boards--made up of members of both parties who served for a term of years--to oversee major parts of the U.S. economy.  Following the creation of the ICC, Congress then gave extensive regulatory authority to other multi-member boards: the Federal Reserve in 1913, the Federal Trade Commission in 1914,the Federal Communications Commission in 1934  the National Labor Relations Board in 1935 and the Equal Employment Opportunity Commission in 1965.  And many others as well through the years.  These bodies all share the same features--the Commissioners are appointed by the President for a term of years (generally longer than a Presidential term) on a staggered basis and the Commissions can only be removed by the President for cause.

As you may have read, Trump has fired--or at least attempted to fire--Commissioners appointed by Democratic Presidents on many of these Boards without cause.  This is despite a 1935 Supreme Court case holding that the President did not have the authority to remove members of the FTC without evidence of inefficiency, neglect of duty or malfeasance in office.  In Humphrey's Executor v. United States, the Supreme Court explained that while the President generally had the authority to remove executive officers at will, the President did not have the authority to remove members of boards like the FTC that have "quasi-legislative" and "quasi-judicial" powers given to it by Congress.

At the time, Humphrey's Executor was view as a conservative victory over President Roosevelt, but in recent years, the case has been sharply criticized by conservative scholars who asset of theory called "unitary executive power", which holds that the Constitution vests the President with sole power over federal agencies.  In the extreme version of this theory, even the power over the career civil service is exclusively vested in the President, but even more moderate versions would give the President power over agencies like the FTC.

Given Humphrey's Executor, we should expect challenges to the firings to be successful in both federal district court and in the federal courts of appeal since these courts are bound by the Supreme Court precedent.  The real issue will be how the Trump Administration will fare once these cases reach the Supreme Court.  At least two Justices (Thomas and Gorsuch) are on record in a concurring opinion in Seila Law LLC v. CFPB with the view that Humphrey's Executor should be overruled.  Given the conservative makeup of the Court, as well as the fact that recent cases have upheld strong claims of Presidential power, a decision to overrule Humphrey's Executor and uphold Trump's firings of the Commissioners is a distinct possibility.

There are many reasons why this would be a mistake.  While the drafters of the Constitution did not likely contemplate the emergence of the Administrative State that arose in the 20th Century, the text of the Constitution hardly supports the notion that Congress had no say over the running of executive agencies.  Article 1, Section 8 expressly gives Congress the power to make laws "necessary and proper for carrying into execution . . . all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof."  This certainly seems to mean that Congress can make laws that govern the Executive Branch.  Peter Shane offers a longer argument about the Constitutional basis for Humphrey's Executor that is well worth a read.

More fundamentally, this model of multi-member bodies has been in existence since at least 1887 (and there was a multi-member body called the Sinking Fund even earlier in our history).  This is almost half of our history as a Constitutional Republic.  Humphrey's Executor itself is almost 90 years old.  Congress has relied on this history in giving authority to federal agencies, and an abrupt decision to reverse the case would retroactively change the balance that Congress established in setting up the Commissions.

And having multi-member federal bodies made up of appointees of several Presidents has served us well over the years.  As Peter Shane notes, these bodies "foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes."

Let's hope the Supreme Court agrees and upholds Humphrey's Executor.