CHANGE (IT BACK): Supreme Court showdown: Trump’s strategy to test limits of his power could spell doom for administrative state.
The high court revealed in an order last week it would revisit Humphrey’s Executor v. United States, a 1935 decision that Hans von Spakovsky, a legal fellow at the conservative Heritage Foundation, said is now on “life support.”
Contrary to the decision in Humphrey’s, von Spakovsky said agencies like the Federal Trade Commission, the Securities and Exchange Commission and various labor boards ought not to be insulated from presidential firings.
“The Constitution says the president is the head of the executive branch,” von Spakovsky told Fox News Digital. “That means, just like the CEO of a big corporation, they get to supervise and run the entire corporation, or in this case, the entire executive branch, and you can’t have Congress taking parts of that away from him and saying, ‘Well, they’re going to keep doing executive branch things, including law enforcement, but you won’t have any control over them.’”
The Supreme Court’s decision came in response to a challenge from a Biden-appointed FTC commissioner whom President Donald Trump fired at will after taking office.
The high court said in a 6-3 emergency decision Trump’s termination of the commissioner, Rebecca Slaughter, could remain in place for now while it uses her case to take on Humphrey’s Executor, which centered on an FTC firing under President Franklin D. Roosevelt. The high court found Roosevelt could not fire a commissioner without cause.
Slaughter has called her firing illegal, pointing to Humphrey’s and the FTC Act, which says commissioners cannot be fired from their seven-year terms without cause such as malfeasance or negligence.
Joshua Blackman, a professor at South Texas College of Law, told Fox News Digital that if Humphrey’s is overturned or narrowed, it will likely also apply to other agencies that have statutory protections against firings designed to preserve their independence.
If Trump were to drive a stake through the heart of the progressive administrative state, it would be one of the biggest and most important conservative wins in US history.