Trump’s independent agency firings bombard Supreme Court 

President Trump’s firings at the Federal Reserve and other agencies with traditional independence from the political forces of the White House have presented the Supreme Court with a critical opportunity to settle weighty questions over the bounds of presidential power. 

Pressure was already building after the administration this month urged the justices to take up Trump’s firing of a Federal Trade Commission (FTC) member without cause, even if it means overruling the high court’s 90-year-old precedent that has enabled protections for some regulators. 

Although the conservative majority has endorsed Trump’s project so far, the justices have signaled the Fed may exist in a category of its own.  

Trump put it to the test on Thursday by bringing his firing of Fed Governor Lisa Cook over mortgage fraud accusations to the high court. 

Together, the appeals pose a critical test to Trump’s expansive control over all reaches of the government, which he has used to enact his sweeping second-term agenda. 

“The Supreme Court is supporting the President's muscular way of running the federal government, and it seems that he can do whatever he wants to do with respect to these agencies,” said Bennett Gershman, a law professor at Pace University. 

The Supreme Court has already greenlit Trump’s efforts to fire several independent agency leaders without cause as their legal challenges proceed. 

In May, the court did so for Trump’s firings at the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). In July, it did so for the Consumer Product Safety Commission (CPSC).  

Both decisions appeared to fall along the court’s 6-3 ideological lines. The majority briefly explained that the government would face greater harm if the officials could carry on as their legal status remains in limbo. 

It has increased expectations among court watchers that the justices are on their way to overrule the court’s 1935 decision, Humphrey’s Executor v. United States, that has blessed removal protections at certain agencies. 

The court has yet to take that step. In both previous emergency appeals, it turned away the administration’s additional request to settle the issue by taking up the firings on their normal docket, instead sending the cases back to the lower courts. 

The administration now hopes the third time is the charm.  

Earlier this month, the Justice Department filed its Supreme Court appeal of lower rulings reinstating FTC Commissioner Rebecca Slaughter.  

Solicitor General D. John Sauer warned in court filings this week that “prolonged uncertainty” about Trump’s removal powers was starting to affect the federal government’s work. 

It has provided the most pressure yet for the justices to consider the issue on their normal docket. Unlike the previous cases, the FTC was the very agency at issue in Humphrey’s Executor, and Slaughter has also acquiesced to taking up the case. 

“Only this Court can provide further authoritative guidance,” Slaughter’s legal team wrote in court filings. 

It caught the attention of the fired NLRB and MSPB officials. Even as they maintained opposition, they went back to the high court to suggest the justices should take up all the cases, not just Slaughter’s, if they desire to move ahead. 

“No real-world harm will come from allowing the ordinary appellate process to unfold over a few more weeks,” wrote attorneys for NLRB Commissioner Lisa Wilcox. 

Attorneys for MSPB Commissioner Cathy Harris similarly cautioned, “a blitzkrieg-to judgment is no way to remake century-old precedent.” 

Trump doesn’t purport to have the required “cause” in ousting those officials and instead argues the requirement is unconstitutional. At the Fed, however, he has taken a different approach and claims he followed the statute. 

Trump announced Cook’s termination last month, pointing to a criminal referral from the Federal Housing Finance Agency (FHFA) that alleged she designated properties in Michigan and Georgia both as primary residences, a move that could result in lower mortgage rates.  

Though Cook, through her lawyers, insists she has not committed mortgage fraud, Trump contends the allegations amount to lawful cause to remove her from her post.  

The Justice Department maintains that the firing does not implicate the central bank’s autonomy, but it drew sharp criticism that Trump is seeking to undermine the Fed’s political insulation. 

The Fed’s status has become the elephant in the room in the previous legal battles.  

“It's actually pretty hard to articulate a way in which, at least with any historical grounding, the Fed is fundamentally different from any other agency,” said Julian Davis Mortenson, a University of Michigan law professor. “It's just that its independence is extremely important and deeply embedded in political practice.” 

Wilcox and Harris months ago contended that to strike down their protections could leave members of the Federal Reserve’s governing board and monetary policymaking body without protections, too — a notion the Supreme Court's conservative majority rejected. 

“We disagree,” the court wrote. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States." 

Justice Elena Kagan, joined by the court’s other two liberal justices, challenged the majority’s “out of the blue” assertion that letting Trump fire Wilcox and Harris would not ultimately have bearing on the constitutionality of the for-cause removal protections for Fed members. 

“For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s,” she wrote. 

At least so far, the majority’s rebuff appears to have held Trump back from firing Fed governors without attempting to cite valid cause. Trump has notably refrained from terminating Fed Chair Jerome Powell despite months of musings.   

“We'll see whether the court feels that this is the one exception to the president's power,” said Gershman, the Pace University law professor. “Whether the Fed is so unique, so special, so critical to the U.S. economy that it should be, it should have more independence. And that will be a very significant message.” 

But the for-cause protections are only a piece of Trump’s emergency appeal to the Supreme Court, which also asks the justices to examine whether Cook was given due process and questions whether the courts have a say at all. 

Cook says she’s entitled to a hearing, but Sauer argued in the administration's application that due process is a “flexible concept.” He contended that social media posts by Trump and FHFA director Bill Pulte about the criminal referral, made five days before Cook’s firing, were enough. 

Cook’s lawyers are due to respond Thursday.  

The justices are not yet conclusively resolving the merits of Cook or Slaughter’s cases. But if Trump is found to have the constitutional authority to remove them, it would have “massive implications” for the president’s control over the entirety of the executive branch.  

Mortenson said it would instantly present the question of how the nation’s civil service could continue to operate.  

“If the idea is that the president's preferences for how to implement a job are all that's required for removal, without respect to any statutory tenure protection, there really is not a logical stopping point for that,” he said.