WASHINGTON (AP) — Under Chief Justice John Roberts, the Supreme Court’s conservative majority has spent years strengthening the authority of the president — a trend that began long before Donald Trump returned to the White House. Now, the Court is poised to revisit a landmark 90-year-old precedent limiting executive power, potentially marking another dramatic shift.
On Monday, the justices will hear arguments in a case that could overturn the 1935 Humphrey’s Executor decision, a ruling that prevents presidents from removing leaders of independent federal agencies without cause. Conservative justices, including those appointed by Trump, have signaled an eagerness to revisit and potentially dismantle this longstanding restraint.
Trump Already Firing Agency Heads Despite 1935 Ruling
In recent months, the Court has allowed Trump to dismiss nearly every independent agency official he sought to remove at the start of his second term. Those removed include leaders of:
- The Federal Trade Commission (FTC)
- The National Labor Relations Board
- The Merit Systems Protection Board
- The Consumer Product Safety Commission
Two officials who survived — Federal Reserve Governor Lisa Cook and U.S. Copyright Office head Shira Perlmutter — remain in their positions for now. The Court has suggested that the Federal Reserve may be constitutionally distinct from other agencies.
Trump has criticized Cook, claiming she was involved in mortgage fraud — an allegation she denies.
The Conservative Legal Movement’s Longstanding Goal
For decades, conservative legal scholars have pushed the unitary executive theory, which argues that all executive power flows directly from the president and that agency leaders must be fully answerable to the Oval Office.
The Humphrey’s Executor ruling has been the biggest obstacle to this philosophy.
Justice Antonin Scalia, in a 1988 dissent widely admired in conservative circles, wrote:
“This does not mean some of the executive power, but all of the executive power.”
Since 2010, the Roberts Court has issued a series of decisions chipping away at protections for agency officials, expanding presidential firing authority.
In 2020, Roberts reaffirmed that “the President’s removal power is the rule, not the exception,” in upholding Trump’s firing of the Consumer Financial Protection Bureau head.
In the Court’s controversial 2024 decision granting Trump broad presidential immunity, Roberts again listed the removal of officials as a “conclusive and preclusive” presidential power that Congress cannot restrict.
Historians Say the Court’s View of History Is Wrong
Despite the momentum toward expanding executive authority, several legal historians argue the Court’s interpretation of early constitutional practice is flawed.
University of Virginia professor Caleb Nelson, a conservative scholar and former clerk to Justice Clarence Thomas, wrote:
“Both the text and history of Article II are far more ambiguous than the current Court suggests.”
Historians submitted briefs outlining how early American leaders understood removal power far more narrowly than the modern Court claims.
Fordham professor Jane Manners noted that although the evidence is clear, she doubts the Court will shift course.
Arguments in the Current Case
The present case centers on the firing of Rebecca Slaughter, a former FTC commissioner.
Her lawyers argue:
- Limits on presidential firing authority are historically grounded
- Humphrey’s Executor is consistent with the Constitution
- Preserving independent agencies is vital for democratic governance
The Justice Department disagrees, urging the Court to fully abandon the 1935 precedent. Solicitor General D. John Sauer wrote:
“Humphrey’s Executor was always egregiously wrong.”
A Secondary But Crucial Question: Can Fired Officials Be Reinstated?
The Court will also consider whether judges can reinstate individuals who were illegally removed.
Justice Neil Gorsuch has hinted that courts may award back pay but lack authority to force reinstatement.
This issue will significantly impact Lisa Cook, the Federal Reserve governor. Her separate case will be argued in January, as Trump continues efforts to remove her.
The justices have expressed concern that allowing the president to fire central bank leaders freely could trigger major economic instability — potentially influencing the outcome.
