Is Humphrey's Executor in the Crosshairs?

President Trump’s decision to fire over a dozen agency inspectors general may be legal, but he has made other moves that are almost certainly unlawful under existing Supreme Court precedent, Humphrey’s Executor in particular.

On Monday, Trump purported to fire two Democratic members of the Equal Employment Opportunity Commission and the Chair and General Counsel of the National Labor Relations Board. Any one of these dismissals could result in litigation, and one in particular could set up a direct challenge to the Humphrey’s Executor precedent.

Under Humphrey’s Executor, decided in 1935, Congress may prevent the President from removing members of multi-member independent agencies (such as the Federal Trade Commission) without cause. A more recent decision, Seila Law (which I unpacked here) held that this does not apply to agencies exercising substantial authority headed by a single individual (such as the Consumer Financial Protection Bureau). While Seila Law did not purport to modify Humphrey’s Executor, the two decisions are clearly in tension.

That brings us to President Trump’s latest moves. The firing of NLRB general counsel Jennifer Abruzzo would seem to be the most easily legally defensible action under existing law. President Biden fired the Trump-appointed NLRB GC at the start of his term, and that action was upheld by the U.S. Courts of Appeals for the Ninth and Fifth Circuits. The rationale is that the GC may have a set term of office, but no express removal protections, so the President’s removal power is unconstrained. That holding is technically consistent with Humphrey’s.

A similar argument may insulate President Trump’s decision to fire two EEOC commissioners. While I am not aware of clear precedent for this move, the relevant statutory provisions do not appear to have express removal protections, so a court could reject any challenge to the firings on grounds similar to that considered in the NLRB GC cases, again without confronting Humphrey’s Executor.

The decision to remove NLRB Chair Gwynne Wilcox, on the other hand, would seem to put Humphrey’s Executor in the crosshairs. The relevant statutory provisions provide that members of the NLRB are appointed for set terms and (as is particularly relevant here) can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Thus a President cannot remove a member merely because of anticipated policy differences or because the President wants the ability to make his own appointment.

There may be a clever way to try and distinguish the removal of an NLRB member from the removal of a Federal Trade Commission member (which is what was at issue in Humphrey’s), but no serious argument for such an outcome comes to mind. This would suggest that if Wilcox contests her removal, the Administration will argue that Humphrey’s Executor should be overruled, and courts will be forced to confront the question. Chief Justice Roberts may be a pro at manipulating statutory text to prevent disruptive outcomes, but this would seem to be beyond even his expertise.

The one exit ramp would be to deny certiorari if a lower court rejects the removal on precedential grounds (which most lower courts are likely to do), but that path would only be viable if there are six justices willing to leave Humphrey’s be.

[Note: As initially posted, I mixed up the names of the EEOC and NLRB general counsels. The post has been fixed.]

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