The ousted U.S. Merit Systems Protection Board chair has encouraged the U.S. Supreme Court to include a caveat for "legislative courts" if it overturns precedent that empowers Congress to limit the president's authority to fire certain agency officials, but opponents of independent agencies want a clean break from the status quo.
Cathy A. Harris, whom President Donald Trump fired in February from the agency that referees federal-sector labor disputes, said she's realistic about the high court's likely decision to overturn its 1935 opinion in Humphrey's Executor v. United States authorizing Congress to check the president's firing powers, but she said she hopes the justices will provide a "bright-line rule" that distinguishes "purely adjudicatory" bodies like the MSPB from independent agencies that exercise executive power. A ruling without that distinction would upset Congress' policy determinations and strip due process protections from parties that appear before "legislative courts," she said in an Oct. 17 amicus brief she filed in a dispute over Trump's firing of Democratic Federal Trade Commission member Rebecca K. Slaughter.
Harris' proposed carveout would apply not only to the MSPB but also to the U.S. Tax Court, the U.S. Court of Veterans Claims, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Federal Claims and the federal district courts for the U.S. Virgin Islands, the Northern Mariana Islands and Guam. Each of those "legislative courts" resides outside of Article III of the U.S. Constitution, which established the judicial branch, and has judges that are appointed by the president, subject to term limits and protected by for-cause removal provisions similar to those found in statutes that govern the FTC and other independent agencies.
"Amicus urges the court — however it rules in this case — not to paint with an overbroad brush and hold that every principal officer outside of Article III must be removable at will," Harris said.
Congress has relied on Supreme Court rulings dating back to 1891 in establishing individual "legislative courts," she said, so a ruling finding that their judges can be removed at will by the president would contradict history, tradition and precedent.
The high court first ruled in McAllister v. United States in the late 1800s that Congress could create "legislative courts" whose members hold office "during good behavior" for a set period of time. And the justices have reiterated the unique position of non-Article III judicial officers as recently as 2010, when the court ruled in Free Enterprise Fund v. Public Company Oversight Board that administrative law judges were exempt from a prohibition on multiple layers of removal protections, Harris argued.
The MSPB and other "legislative courts" also lack the same authority to wield executive power that have spurred concerns about a so-called headless "fourth branch" of independent agencies, she said. The special courts are only empowered to hear discrete cases and apply laws passed by Congress. They can't bring civil suits against private parties, promulgate binding rules or initiate investigations like the FTC and other agencies can.
"These adjudicatory bodies perform a genuine judicial function, have a long-standing pedigree, and pose none of the constitutional problems presented by policy-making independent agencies," Harris said.
Much of Harris' amicus brief echoes arguments she raised in a conditional petition for certiorari she filed in September while the Supreme Court was still considering whether to convert Slaughter's case from an emergency docket appeal to a merits docket dispute. The justices ultimately agreed to review the merits of Slaughter's firing but denied a bid by Harris and fired National Labor Relations Board member Gwynne Wilcox to consolidate the three cases so that the court could consider its potential ruling's effect on a range of independent agencies. Oral arguments in the case are scheduled for Dec. 8.
In a case that's nominally about for-cause removal protections for FTC members but substantially about the president's authority to fire any independent agency official at will, Harris said she filed her amicus brief to provide "an important middle-ground perspective" that wouldn't be represented otherwise.
Trump and a cadre of supporters have urged the Supreme Court to wipe out what's left of Humphrey's Executor, arguing it was "poorly reasoned," full of legal and factual errors, and inconsistent with both the text of the Constitution and prior Supreme Court holdings. Even though recent decisions have limited the precedent's reach, it is still wreaking havoc on the government and unconstitutionally limiting the president's ability to control the executive branch, they argued.
Several friends-of-the-court filed briefs in support of the president's sweeping argument against for-cause removal protections, including several that either are currently challenging the authority of independent agencies in court or have done so in the past.
Two Starbucks Corp. workers who previously challenged job protections for the NLRB that prohibit the president from firing members except in instances of "neglect of duty or malfeasance in office" urged the Supreme Court to overturn Humphrey's Executor in an Oct. 17 brief. Ariana Cortes and Logan Karam said the NLRB is a "quintessential" example of the "headless fourth branch" that was created in large part due to the 1935 ruling.
The pair sued the NLRB in federal court in 2023, claiming the board was an "unconstitutionally structured agency" because of the removal protections, and, therefore, didn't have the authority to decide their separate bids to decertify Starbucks unions. The D.C. Circuit dismissed their case in July after the Trump administration stopped defending the job protections.
Cortes and Karam resurrected their arguments in their amicus brief. Humphrey's Executor, they said, was meant to provide removal protections for multimember boards of "experts" balanced along partisan lines, but the NLRB is much more partisan than any agency the 1935 Supreme Court could've imagined. It "whipsaws on nearly every major issue" whenever a new administration takes over the White House and appoints board members whose views align with their political party, making it impossible for the public to rely on the board's rulings.
"These fluctuations are not technocratic shifts based on new scientific or economic evidence," Cortes and Karam said. "Rather, they are due to political shifts in the board's makeup."
The U.S. Equal Employment Opportunity Council, whose members have long been considered to have inherent for-cause removal protections, is also one of several independent agencies that have abused their unchecked executive power to implement "monumental" policy decisions that should be made by the president, the Christian Employers Alliance argued in an Oct. 17 amicus brief.
The alliance of companies committed to "biblical principles" obtained a permanent injunction in 2024 that blocks the EEOC from requiring its members to provide insurance coverage for gender-affirming care for transgender employees. A pending lawsuit launched in January challenges another EEOC policy that requires employers to use an employee's preferred pronouns and allow them to use the restroom that aligns with their gender identity, as well as provide accommodations to employees who undergo elective abortions.
"In short, EEOC has wielded executive power to make monumental policy decisions in hotly contested issues, including gender transitions, pronoun use, female-only restrooms, and abortion," the Christian Employers Alliance said in its brief. "And as a so-called independent agency, EEOC has done so without political accountability. This is inconsistent with the Constitution."
Additionally, the Pacific Legal Foundation pointed to an instance in which the U.S. Consumer Product Safety Commission, whose members can only be removed by the president for "neglect of duty or malfeasance in office," allegedly violated a company's fair trial rights by acting as prosecutor, judge and jury when pursuing product safety violation claims against Leachco Inc. The child care company filed a federal lawsuit to block CPSC's in-house enforcement proceedings related to its allegedly defective infant lounger, but the Tenth Circuit allowed the administrative trial to move forward, citing Humphrey's Executor.
"The progressive framers of the administrative state promised neutral expert administration," PLF argued. "But experience reveals partisanship, influence and arbitrary actions."
But Michael T. Morley, a Florida State University College of Law professor, cautioned the Supreme Court against categorically banning for-cause removal protections for the dozens of independent agencies currently operating in the government. A ruling like one urged by Trump and his supporters could result in a huge power shift by automatically transforming the FTC, EEOC, NLRB, CPSC and many other administrative agencies into "powerful new executive agencies" that Congress never intended to create. The president would have newfound authority over broad swatches of the economy while Congress would be left unable to retool the agencies, he said in an Oct. 17 brief.
"Allowing the president to remove agency heads at will increases his direct control over every statutory provision and regulation the agency enforces, interprets, or administers," Morley said. "Removing the restrictions that Congress has imposed on particular delegations of authority to the executive branch, while allowing those delegations to remain in place, fundamentally alters the 'legislative bargain' embodied by the underlying statute."
If the justices do decide to overturn Humphrey's Executor, they should either make their ruling prospective and only applicable to future statutes creating independent agencies or stay the ruling's effective date to give Congress time to amend statutes or craft "successor" agencies as needed, he said. Or, the court could simply limit its ruling to the FTC, and deal with other agencies' for-cause removal protections on a case-by-case basis.
Harris is represented by Neal K. Katyal and Jessica C. Huang of Milbank LLP, Nathaniel A.G. Zelinsky, Samantha Bateman, Mary L. Dohrmann and James I. Pearce of Washington Litigation Group, Michael Kator, Kerrie Diane Riggs and Jeremy D. Wright of Kator Parks Weiser & Wright PLLC and Linda Marie Correia of Correia & Puth PLLC.
Morley is represented by himself.
Cortes and Karam are represented by Aaron Solem and Alyssa Hazelwood of the National Right to Work Legal Defense Foundation.
Christian Employers Alliance is represented by Erin M. Hawley, John J. Bursch, Matthew S. Bowman, Natalie D. Thompson, James A. Campbell and Julie Marie Blake of Alliance Defending Freedom.
Pacific Legal Foundation is represented in-house by Oliver J. Dunford, Aditya Dynar and Michael Poon.
The case is Trump et al. v. Slaughter, case number 25-332, in the Supreme Court of the United States.
Oct 22
Deal Summary
