The issue of whether a U.S. president has the power fire members of independent federal agencies is now being considered by the U.S. Supreme Court. In August, President Trump attempted to fire Federal Reserve Gov. Lisa Cook, but the Supreme Court ruled she could keep her seat until the justices take up that case in early 2026. Trump also fired Rebecca Kelly Slaughter from the Federal Trade Commission in March. It’s that case, Trump v. Slaughter, that the justices heard arguments on from lawyers representing both sides on Dec. 8.
A 90-year-old Supreme Court decision in the case called Humphrey’s Executor v. United States, upheld the independence of these executive branch agencies. President Trump argues that since they are part of the executive branch, the president should have complete control over them.
Between The Lines’ Melinda Tuhus spoke with Bruce Ackerman, Sterling professor of law at Yale Law School, a constitutional scholar and author of 19 books, including his three-volume series on American constitutional history titled, We the People. In a recent paper, he opined that if the six conservatives on the court overturn Humphrey, “they will not only be enabling Trump and his successors to transform a host of independent agencies into mere playthings of partisan loyalists dispatched by the White House, but they’ll be shattering the entire American tradition.” Ackerman believes that there are differences of opinion on this case between one of the Trump-appointed justices and the president’s other appointees, and he holds out hope that the Supreme Court may come down on the side of protecting the independence of these federal agencies.
BRUCE ACKERMAN: Let’s start with this remarkable argument. The person who was really brilliant is Amy Coney Barrett, who I should emphasize is a Trump appointee and it was she however, who kept on pressing and emphasizing the fundamental mistakes made by her fellow justices who are Trump appointees and indeed supported in brilliant ways the arguments of the three Democrats. This case has rocketed up to the Supreme Court in incredibly rapid time. They’re going to have to think a lot about what Coney Barrett has said.
Now, what does she say first? And this is a big mistake that lots of the justices made. The independent agencies do not involve Congress stealing the power of the president first and most obviously, if Congress wants an independent agency, the president can veto it if he doesn’t want it. The fact of the matter, and this is what she emphasized, is that the beginning of independent agencies occurs in 1887 under Grover Cleveland.
And why does Grover Cleveland, who is president and could create an agency that he could dominate, why does he insist that the agency be independent? The answer is the robber barons. The robber barons are owning the three railroads that take all the agricultural products from the West and ship them to the East, as well as lots of manufacturing things in places like Chicago. And what the robber baron monopolists do is figure out how to charge shipping fees which exploit their monopoly profits and strip all the workers and the businessmen of the competitive returns that they should be getting.
And the problem though, is that neither the Congress nor the courts—if Congress just passes a law which says that the railroad shall charge fair and equitable rates—how are they going to figure ’em out? Judges are not number crunchers, nor are political appointees. What we need are people who are number crunchers, who are selected and have a special staff. That precedent is then taken up by every president of the early 20th century. So it is of fundamental importance for both ordinary, thoughtful Americans to recognize the disaster that if we don’t be true to this history.
MELINDA TUHUS: The sentence that grabbed my attention when you talked about the Roberts court being one that is overturning precedents. The first one I think of is Roe v. Wade, it got overturned. Can you just summarize any other ones that have occurred under the Roberts court and this one could possibly be another if conservatives vote to overturn it.
Generally speaking, what the Supreme Court has traditionally done is let these injunctions issued by the lower courts stand until—for another year or 18 months—while the cases come up to the Supreme Court. The court can hear arguments and then think and deliberate before they come to a final decision. So during this provisional period, the president has to wait. And then, and only then, if the Supreme Court says the president is right and the lower courts are wrong, then the president wins.
But today, what we’ve had is the Roberts court on this so-called emergency docket has removed almost all of the injunctions so that the president within the first four months issued hundreds and hundreds of orders that many judges have found illegal and he’s gotten away with it. He’s actually putting them into practice right now.
For more information, visit Bruce Ackerman’s Yale University website at law.yale.edu/bruce-ackerman.
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