The Executive Power Case That Unites Donald Trump and Franklin Roosevelt

The U.S. Supreme Court has just taken a major step toward endorsing a broad view of executive power that was first championed by former President Franklin D. Roosevelt and is now championed by President Donald Trump.

In an unsigned order issued Thursday in Trump v. Wilcox, the Supreme Court lifted a lower court order that blocked Trump from removing Gywnne Wilcox from her position as a member of the National Labor Relations Board (NLRB). In so doing, a majority of the Supreme Court not only allowed Trump’s firing of the Joe Biden appointee to go into effect; the Court also signaled that the New Deal era precedent which strictly limits the president’s power to fire “independent” agency heads such as Wilcox is facing impending legal doom.

To understand the importance of Trump v. Wilcox, it is necessary to first understand the importance of Humphrey’s Executor v. United States (1935). William Humphrey was a commissioner of the Federal Trade Commission (FTC) appointed in 1925 by President Calvin Coolidge. In 1933, with the New Deal in full swing, FDR demanded Humphrey’s resignation. “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission,” Roosevelt wrote to Humphrey, “and frankly, I think it is best for the people of this country that I should have full confidence.”

In other words, Roosevelt wanted Humphrey gone from the FTC for purely political reasons. FDR desired to replace the conservative Coolidge appointee with a trusted New Dealer of his choosing. So, when Humphrey refused to voluntarily depart, Roosevelt fired him. The resulting lawsuit by Humphrey ultimately landed at the Supreme Court two years later.

It would be a resounding win for Humphrey. The only downside for the fired commissioner was that he did not live to see it, having died of a stroke one year earlier. However, as the legal historian William E. Leuchtenburg has explained, “the executor of his estate, Samuel Rathburn, took over as plaintiff seeking to recover that portion of Humphrey’s salary payable from the day of his removal to the day of his death. Humphrey had always been a bare-fisted brawler, and his ghost was to prove an even feistier adversary.”

The 9–0 ruling in Humphrey’s Executor was a stinging defeat for FDR. The Court flatly forbade Roosevelt—and every other president—from firing agency heads like Humphrey for purely political reasons. The FTC “cannot in any proper sense be characterized as an arm or an eye of the executive,” declared the Court. “We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.”

Which brings us back to Trump v. Wilcox. According to the National Labor Relations Act of 1935, the presidentially appointed members of the NLRB “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Yet Trump fired Wilcox from the board for what is plainly an “other cause.” According to the termination letter sent by Trump, Wilcox’s work at the NLRB was not “consistent with the objectives of my administration.” Trump fired Wilcox for the same sort of purely political reasons that Roosevelt fired Humphrey.

That is why the Supreme Court’s order in favor of Trump is so significant. It essentially serves notice that the days of Humphrey’s Executor are numbered. By allowing Trump’s firing of Wilcox to go into effect while the case plays out in the lower courts, the Supreme Court effectively expanded every president’s power over agencies like the NLRB beyond the limits previously set by the Court in 1935.

“Because the Constitution vests the executive power in the President,” the Court’s order in Trump v. Wilcox declared, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.” And in “our judgment,” the order continued, “the Government is likely to show” that a NLRB board member qualifies as an officer who “exercise[s] considerable executive power.”

Writing in dissent, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, argued that “our Humphrey’s decision remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief.”

But as Kagan’s dissent also makes clear, a majority of the Court thinks otherwise, meaning that it is now only a matter of time before Humphrey’s Executor officially ceases to be good law.

Thanks to Trump, Roosevelt’s ghost may soon be getting the last laugh over Humphrey’s.

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