US Supreme Court considers another step in favour of presidential powers sought by Trump

For years, Chief Justice John Roberts has steered the Supreme Court’s conservative bloc toward strengthening presidential authority, a shift that began well before Donald Trump returned to the White House.

The court may push that trend further on Monday, when it hears a case asking the justices to overturn a 90-year-old precedent that restricts the president’s power to dismiss certain officials. The 1935 ruling, Humphrey’s Executor, has served as a long-standing limit on executive authority, but conservative justices have increasingly signalled their willingness to abandon it. Liberal Justice Elena Kagan remarked in September that the court’s right-leaning majority seemed “eager” to dismantle the decision.

In practice, the court has already permitted Trump, early in his second term, to dismiss nearly every official he sought to remove — despite the constraints laid out in Humphrey’s Executor, which bars presidents from firing the heads of independent agencies without cause.

Among those ousted was Rebecca Slaughter of the Federal Trade Commission, whose removal is central to the case now before the court. Trump has also successfully pushed out officials from the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.

Only two officials have resisted attempts to unseat them: Federal Reserve Governor Lisa Cook and Shira Perlmutter, the Library of Congress’s top copyright officer. The court has hinted that the Fed may be treated differently from other independent bodies, and Trump has publicly pressed for Cook’s removal over claims of mortgage fraud — allegations she denies.

For decades, conservatives who subscribe to the “unitary executive” theory have viewed Humphrey’s Executor as an obstacle to a stronger presidency. The upcoming case could give the court its most direct opportunity yet to dismantle that barrier.

The decision ushered in an era of powerful independent federal agencies charged with regulating labor relations, employment discrimination, the air waves and much else.

Proponents of the unitary executive theory have said the modern administrative state gets the Constitution all wrong: Federal agencies that are part of the executive branch answer to the president, and that includes the ability to fire their leaders at will.

As Justice Antonin Scalia wrote in a 1988 dissent that has taken on mythical status among conservatives, “this does not mean some of the executive power, but all of the executive power.”

Since 2010 and under Roberts’ leadership, the Supreme Court has steadily whittled away at laws restricting the president’s ability to fire people.

In 2020, Roberts wrote for the court that “the President’s removal power is the rule, not the exception” in a decision upholding Trump’s firing of the head of the Consumer Financial Protection Bureau despite job protections similar to those upheld in Humphrey’s case.

In the 2024 immunity decision that spared Trump from being prosecuted for his efforts to overturn the 2020 election results, Roberts included the power to fire among the president’s “conclusive and preclusive” powers that Congress lacks the authority to restrict.

But according to legal historians and even a prominent proponent of the originalism approach to interpreting the Constitution that is favored by conservatives, Roberts may be wrong about the history underpinning the unitary executive.

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