We’re living through history. We have a new president who has already been president, something that has only happened one other time since the founding of the republic.
Watch as the 45th and 47th president of the United States does something no elected official has been able to do since Franklin Delano Roosevelt’s New Deal. President Donald Trump is going to outlive the all-powerful, formerly eternal, federal bureaucracy.
For nearly 100 years, an unaccountable bureaucracy made up of thousands of departments, offices and agencies has been running the government while mostly ignoring the officials elected by the voters. Feeding on your income through a tube permanently attached to your paycheck, the bureaucracy became bigger, stronger and hungrier every year. Presidents would come and go, but endless wars, wasteful spending, needless regulations and higher debt would stay and stay.
Now Trump has returned to the White House with a map to the source of the problem. A close look at some of his executive orders, and at the particular way he has fired the heads of independent agencies, seems to reveal a strategy aimed at overturning specific legal precedents that have empowered and protected the bureaucracy. He has invited this fight, which is now barreling toward the U.S. Supreme Court. Will he win?
We’ll all find out together when the justices have the opportunity to reconsider the 1935 case of Humphrey’s Executor v. United States.
William E. Humphrey was appointed by President Herbert Hoover in 1931 to serve on the Federal Trade Commission for a term of seven years. When things didn’t work out as planned for Hoover in the 1932 election, FDR asked for Humphrey’s resignation so there wouldn’t be a conservative overseeing the definitely-not-conservative New Deal.
Humphrey refused to resign, and on Oct. 7, 1933, Roosevelt fired him. Because his termination was purely for reasons of policy and not for “inefficiency, neglect of duty, or malfeasance in office” as the FTC Act required, Humphrey had a case, but then he had a different kind of termination, so the case is Humphrey’s Executor v. United States. The executor sued the government for the salary that was owed to the estate for the duration of Humphrey’s appointed term.
FDR’s team argued that the Supreme Court’s decision in a 1926 case, Myers v. United States, confirmed the president’s power to remove officers who were “units of the executive department.” But the justices said the Myers case didn’t matter because the Federal Trade Commission wasn’t really “executive.” It was “quasi-legislative and quasi-judicial.” Therefore, Humphrey could only be fired for cause, not policy.
The 1935 Humphrey’s Executor decision has allowed Congress to create powerful independent agencies that execute the laws but do not answer to the elected chief executive. Lawyers have argued that this decision contradicts the U.S. Constitution by violating the separation of powers, which is key to protecting everybody’s freedom from a government that can rapidly become oppressive when unchecked.
Did Trump selectively fire the heads of independent agencies in order to get sued, get to the U.S. Supreme Court and make the same argument that FDR made in Humphrey’s Executor? You be the judge:
Roosevelt asked Humphrey to resign because “the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection.” When Humphrey wouldn’t go, FDR sent him this brief letter: “Effective as of this date, you are hereby removed from the office of Commissioner of the Federal Trade Commission.”
Here’s the text of Trump’s letter to Ellen Weintraub: “You are hereby removed as a Member of the Federal Election Commission, effective immediately.”
Here’s the text of the email sent by Sergio Gor, Director of the Presidential Personnel Office, to Hampton Dellinger on Feb. 7: “On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the U.S. Office of Special Counsel is terminated, effective immediately.”
Here’s the text of more than a dozen nearly identical emails sent by Gor to Hannibal “Mike” Ware and other Inspectors General on January 24: “Due to changing priorities, your position as Inspector General … is terminated, effective immediately.”
The email sent on behalf of the president to Gwynne Wilcox, informing her that she was removed from the National Labor Relations Board, echoed FDR with the statement that Wilcox had not “been operating in a manner consistent with the objectives of [Trump’s] administration.”
Trump has this issue teed up like a Titleist Pro V1 on the first hole at Augusta. Can the elected president of the United States replace the top officials in powerful government agencies, or can they pursue their own policy goals, unaccountable and unchecked in their “quasi-legislative and quasi-judicial” unelected positions?
Legal challenges to the firings of Dellinger, Weintraub, Wilcox and others may succeed in the lower courts. But those practice-round victories won’t count in the final score.
This is only one of the court fights that Trump has picked. His executive orders directing spending freezes, workforce reductions and cuts to foreign aid have prompted lawsuits that have landed in federal courts in Rhode Island, San Francisco and the District of Columbia.
Individual federal judges have issued temporary restraining orders that could turn into preliminary injunctions, preventing the president’s policies from being implemented while the lawsuits drag on. This effectively permits one federal judge to take control of the whole executive branch, potentially for years. Watch for the U.S. Supreme Court to ask a few questions about that, sooner rather than later.
What Trump is doing is the opposite of dictatorship. He’s going after government agencies that have spent decades flaunting that they can do anything to anybody at any time. He is limiting their power.
That’s good. Freedom is a condition that exists under a government of limited power.
The United States was the first nation to figure that out. And we will again.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley