The one distinguishing feature of Trump 2.0 is how he and his A-Team arrived in the Oval Office with sky-high ambitions and rock-solid plans to bring those ambitions to fruition. One target was the massive Federal funding stream that paid for a network of progressive 501(c)3 to spew out leftist propaganda. By the way, have you noticed the general absence of the rent-a-crowds that we usually get with progressive outrage?
A second, and perhaps more important, target was the administrative state itself.
Beginning with the Interstate Commerce Commission in 1886, Congress created myriad boards and commissions to handle specific tasks. The goals seem to have been to create a locus of subject matter expertise, insulate those agencies from the Executive Branch, and let Congress shirk its duties. By the time of the Roosevelt administration, there were so many of them that Roosevelt's Committee on Administrative Management, aka the Brownlow Committee, which had been tasked with restructuring the Executive Branch, called them a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers.”
Many of them were headed by people the president could not fire. One of these was the Federal Trade Commission. By law, FTC commissioners could only be " removed by the President for inefficiency, neglect of duty, or malfeasance in office."
William Humphrey was one of those commissioners. He was a Republican politician and former seven-term member of Congress. Calvin Coolidge appointed him to the FTC in 1925. He was reappointed by Herbert Hoover in 1931. In 1932, FDR decided he had better use for the seat and summarily fired Humphrey. Humphrey sued but died five months later. The executor of his estate pressed the suit to recoup five months' salary. This spat was destined to become a landmark Supreme Court precedent called Humphrey's Executor v. United States, 295 U.S. 602 (1935), or just Humphrey's Executor. Mr. Humphrey's estate hit the jackpot.
In a unanimous opinion, the Supreme Court ruled:
...The Federal Trade Commission, in contrast, is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave, and, in the contemplation of the statute, must be free from executive control. To the extent that it exercises any executive function -- as distinguished from executive power in the constitutional sense -- it does so in the discharge and effectuation of its quasi-legislative or quasi-judicial powers, or as an agency of the legislative or judicial departments of the Government. Pp. 295 U. S. 627-628.
4. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.
This ruling let independent agencies do whatever they wished. As rulemaking became a big deal, an independent agency in the hands of political opponents of the president with the power to interpret statutes and make legally binding regulations could engage in sabotage of the president's agenda.
Along the way to where we are, there was an interesting hiccup that changed everything. Elizabeth Warren tried to create an oversight-free empire called the Consumer Financial Protection Bureau, which was funded by requesting funds from the Federal Reserve and was headed by a single director who could only be removed for cause. While the Roberts Court let the completely unconstitutional funding arrangement slide (Consumer Financial Protection Bureau vs. Community Financial Services Association of America), it did rule that the single director exercising rulemaking and enforcement powers was not Constitutional: see Seila Law LLC vs. Consumer Financial Protection Bureau.
We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.
In the meantime, other positions have arisen that Congress has tried to protect, which don't seem to fit in the Humphrey's Executor rubric. Trump fired Special Counsel Hampton Dellinger; see Trump Sends Scorching Appeal of DC Court Order Reinstating Biden Appointee to the Supreme Court. A judge has ordered the president to reinstate a member of the Merit Systems Protection Board; see Judge Orders Biden Appointee Fired by Trump Reinstated to Office. Trump fired 17 inspectors general who can only be fired after informing Congress; see Trump's 'Midnight Massacre' of 17 Inspectors General Throws DC Status Quo Into Chaos – RedState. He fired a member of the National Labor Relations Board, a member of a multi-member commission, and is statutorily protected from firing; see Trump Goes Pearl Harbor on the National Labor Relations Board, Fires Chairman and General Counsel – RedState.
After the NLRB firing, the White House even informed Illinois Democrat Senator Dick Durbin, ranking member of the Judiciary Committee, of its intent.
White House Counsel Letter on Humphreys by streiff on Scribd
To put the icing on the cake, on Tuesday, Trump signed an Executive Order requiring all independent agencies to clear their rulemaking and legal positions with the White House: see Trump Executive Order Wipes Out 90 Years of Practice and Permanently Changes the Executive Branch – RedState.
There are no guarantees on how this will play out. Some of the cases, like the IGs, are clearly within federal agencies. It is insane that they are not fireable by the president. The NLRB carries out executive functions like supervising union elections. The OSC's function is investigatory, which is an executive activity. The MSPB case may be closer to Humphrey's Executor, but it isn't clear-cut.
But, as my friend and former RedState colleague, Bill Shipley, says:
SCOTUS has danced around the continuing vitality of the Humphrey's decision for many many years. The issue is now squarely before them. This is a fight worth having at this moment in time.
And the most important part about fights worth having is that you need someone who will fight them. And we do.
