The court’s conservatives, liberal Justice Elena Kagan noted in September, seem to be “raring to take that action.”

They already have allowed #Trump, in the opening months of the Republican’s second term, to fire almost everyone he has wanted, despite the court’s 1935 decision in #HumphreysExecutor that prohibits the president from removing the heads of #independent agencies without cause.

#law #SCOTUS #ActivistCourt

The ofcls include Rebecca Slaughter, whose firing from the #FTC is at issue in the current case, as well as ofcls from the #NLRB, #MSPB & #CPSC.

The only ofcls who have so far survived efforts to remove them are Lisa Cook, a #FederalReserve governor, & Shira Perlmutter, a #LibraryOfCongress copyright ofcl. #SCOTUS already has suggested that it will view the Fed differently from other #independent agencies, & #Trump has said he wants her out because of allegations of mortgage fraud.

#law

#Trump is once again asking #SCOTUS to expand his #power as the justices on Monday consider whether he can fire #independent government officials insulated by #laws meant to shield them from #politics.

The case involves Trump’s firing of a commissioner on the #FTC & a landmark decision from 1935, which said that #Congress could put limits on the president’s authority to remove some executive branch officials.

#law #HumphreysExecutor #ActivistCourt #Autocracy
https://www.nytimes.com/live/2025/12/08/us/trump-supreme-court-presidential-power?smid=nytcore-ios-share

Since returning to the White House, #Trump has fired government #watchdogs, leaders of #independent agencies & rank-and-file federal workers, drawing multiple legal challenges.

#SCOTUS has generally allowed the firings to take effect through temporary emergency orders. This case is the first opportunity for the court to issue a conclusive ruling on the underlying legal questions of Trump’s firings.

#law #HumphreysExecutor #ActivistCourt #Autocracy

Under federal #law, #Trump is free to fire Rebecca Kelly Slaughter, a member of the #FTC. But he has to provide a reason. #Congress has defined sufficient cause to fire a member of the FTC as “inefficiency, neglect of duty or malfeasance in office.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy

#Trump says the #SeparationOfPowers guaranteed by the #Constitution forbids #Congress to limit his ability to run the #ExecutiveBranch. For that reason, he insists that he can fire Ms. Slaughter & other leaders of #independent agencies for any reason — or for no reason at all. Congressional efforts to shield officials from political interference by curbing his ability to fire regulators, he argues, are unconstitutional.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy

The case #SCOTUS hears today will test that proposition.

But how hard would it be for #Trump to simply comply with statutes requiring him to give a reason before firing regulators? The legal terrain is surprisingly uncharted because attempts to remove leaders of independent agencies “for cause” are exceedingly rare.

#law #HumphreysExecutor #ActivistCourt #Autocracy

Federal laws requiring presidents to show cause are, on the other hand, commonplace. More than 30 statutes say that leaders of executive agencies can be removed only for some combination of the same factors cited in the #law shielding #FTC commissioners like Ms. Slaughter. Another 20 or so, like the one governing the #FederalReserve Board, say only that agency leaders may be removed “for cause,” without elaboration.

#HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy

Arguments have started 🧵

Trump’s Solicitor General D. John Sauer opened his argument by calling the court’s landmark decision in the 1935 case #HumphreysExecutor “an indefensible outlier.” He called the case “a decaying husk with bold & particularly dangerous pretensions” that was “grievously wrong” when it was decided.

Again. This was a landmark decision that has stood for 90 years.

#law #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #power

Justice Sonia #Sotomayor says #SCOTUS should be wary of overturning a 90-year-old precedent that established the very structure of the modern #FederalGovernment.

Sotomayor appears sharply skeptical of the #Trump admin’s argument that the president has the #power to fire the leaders of #independent agencies. “You’re asking us to overturn a case that has been around for over 100, nearly 100 years. Correct?”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy #ExecutiveBranch 🧵

#Sotomayor added, “You’re asking us to destroy the structure of government” & “to take away from #Congress its ability” to decide the “government is better structured with some agencies that are #independent.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #power 🧵

Sauer is quick to try to carve out the #FederalReserve, saying the admin has not challenged congressional limitations on the president’s #power to remove its members.

But that has started a long back & forth between several Justices & Sauer about which agencies would not be subject to a decision in favor of #Trump.

There are hundreds of “#independent” federal agencies.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch #SeparationOfPowers #Congress 🧵

The conservative legal movement has long argued an originalist understanding of the #Constitution — an interpretation that looks to how the document was understood at the time of the nation’s founding—demands letting the president remove #ExecutiveBranch officials as he sees fit. The so-called “unitary executive theory,” says the president should have complete control of the exec branch & congressional efforts to shield leaders of #independent agencies from #politics should be forbidden.

#law 🧵

In Sept, though, a leading originalist law professor, Caleb E. Nelson, challenged that wisdom in an article that attracted attention in legal circles & beyond. He wrote that the text of the #Constitution & the historical evidence surrounding it in fact grant #Congress broad authority to shape the #ExecutiveBranch, including by putting limits on the president’s #power to fire people.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #SeparationOfPowers 🧵
https://democracyproject.org/posts/must-administrative-officers-serve-at-the-presidents-pleasure

Professor Nelson, who teaches at the University of Virginia and served as a law clerk to Justice #ClarenceThomas, has been exceptionally influential. His scholarship has been cited in more than a dozen #SCOTUS opinions & by every member of the 6-justice conservative majority.

#law #HumphreysExecutor #ActivistCourt #Trump #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Nelson’s September article was repeatedly cited by lawyers for Rebecca Kelly Slaughter, the member of the #FTC whose firing is at issue in Monday’s case, in her main #SCOTUS brief. In reply, lawyers for #Trump wrote that Ms. Slaughter’s brief “rehashes objections to the removal power” from a “recent essay by Professor Caleb Nelson.”

#law #HumphreysExecutor #ActivistCourt #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Professor Nelson’s article acknowledged that #SCOTUS “appears to be moving toward a sweepingly pro-president position.”

Letting the president fire ofcls “for reasons good or bad,” Nelson wrote, would grant him “an enormous amount of #power —more power, I think, than any sensible person should want anyone to have, & more power than any member of the founding generation could have anticipated.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #ExecutiveBranch #SeparationOfPowers #Congress 🧵

But the question is not whether allowing limits on the president’s power to fire officials is sensible, Professor Nelson wrote.

“I am an originalist, & if the original meaning of the #Constitution compelled this outcome, I would be inclined to agree that the Supreme Court should respect it until the Constitution is amended through the proper processes,” he wrote.

But the textual & historical evidence is “far more equivocal than the current court has been suggesting,” he wrote.

#law #SCOTUS 🧵

Back to the courtroom [done w/discussion of Nelson’s article]

Justice Elena Kagan says independent agencies do a lot of legislating & a lot of judging [I would say “regulating & investigating”, not “legislating & judging”, but that’s me]. Giving the president unfettered authority over them, she says, would concentrate “massive unchecked power” in the #ExecutiveBranch, at odds with the #SeparationOfPowers.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #Congress 🧵

Sauer immediately jumps on Kagan’s characterization that agencies legislate & judge as further reason why agencies need to be reeled in bc if they’re doing those things then they’re violating the Constitution’s #SeparationOfPowers. Legislation being a #power of #Congress & judging a power of the #judiciary.

This is exactly why I disagreed with her phrasing. Regulating & investigating is more accurate anyway.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #ExecutiveBranch 🧵

Justice #Kavanaugh expresses doubts about one part of the #Trump admin’s argument: even if the fired commissioner wins, she is not entitled to reinstatement but only to back pay. If that argument were accepted, Kavanaugh says, it could affect the #FederalReserve.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Justice Ketanji Brown #Jackson expressed doubt that more presidential firing power is better for democracy.

"You seem to think that there's something about the president that requires him to control everything as a matter of democratic accountability, when, on the other side, we have #Congress saying we'd like these particular agencies & officers to be #independent of presidential #control for the good of the people," Jackson told Sauer.

#law #SCOTUS #ActivistCourt #Trump #SeparationOfPowers 🧵

"And I don't understand why it is," #Jackson said, "that the thought that the president gets to control everything, can outweigh Congress's clear authority & duty to protect the people in this way?"

Jackson notes that #Congress has decided #experts should be who is making decisions about particular areas. Then the president comes in & fires scientists, economists, PhDs etc with #loyalists. How is that in the people’s best interests?

#law #HumphreysExecutor #SCOTUS #Trump #SeparationOfPowers 🧵

Finally Sauer is finished.

The justices will now hear from Amit Agarwal the lawyer representing fired #FTC commissioner Rebecca Slaughter.

Agarwal is a special counsel for Protect Democracy, which describes itself as “a cross-ideological nonprofit group dedicated to defeating the authoritarian threat.”

He worked as a law clerk for Judge #Kavanaugh on the US Court of Appeals for DC, before #Trump nominated Kavanaugh to #SCOTUS. He also worked as a clerk for Justice Samuel #Alito.

#law 🧵

For the first time in the hearing, Justice #ClarenceThomas speaks. He had no questions for Trump’s Solicitor General John Sauer.

Thomas with the help of #Gorsuch asks whether #Congress can create commissions of multimember agencies with presidential secretaries at their top, with differing firing powers.

Pretty sure Congress just let out a collective groan at that prospect.

This would be asking them to restructure government.

#law #SCOTUS #ActivistCourt #Trump #SeparationOfPowers 🧵

#SCOTUS has ruled #Congress cannot limit the president’s #power to fire agencies led by a single official. The question before the court today is if it can insulate members of multi-member commissions from removal.

In 2020, in ruling Congress could not limit the president’s power to fire the head of the #CFPB, CJ #JohnRoberts wrote the ruling “does not foreclose Congress from pursuing alternative responses to the problem—for example, converting the CFPB into a multimember agency.”

#law #Trump🧵

The lawyer for fired FTC commissioner Rebecca Slaughter argued that a decision by the justices allowing the president the #power to fire leaders of #independent agencies meant that “everything is on the chopping block.” Justice #Alito immediately jumped in, saying that he was skeptical that ruling would lead to such sweeping ramifications.

#law #HumphreysExecutor #ActivistCourt #Trump #Autocracy #ExecutiveBranch #SeparationOfPowers #Congress 🧵

The enormous sweep of last year’s #SCOTUS decision granting #Trump substantial #immunity from prosecution is apparent in this argument, where there has been repeated reference to that decision’s expansive vision of presidential #power.

#law #HumphreysExecutor #ActivistCourt #Autocracy #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Justice #Kavanaugh pushes the lawyer for the fired #FTC commissioner Rebecca Slaughter about the #Trump admin’s argument that “independent agencies are not accountable to the people.” The justice asked how the lawyer would respond to the argument that “they’re not elected as #Congress & the President are, & are exercising massive power over individual liberty & billion dollar industries.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Autocracy #power #ExecutiveBranch #SeparationOfPowers 🧵

Justice Kagan [I think, maybe it was Sotomayor] just gave Amit Agarwal, the lawyer for fired FTC commissioner Rebecca Slaughter, the opening needed to discuss Professor Caleb Nelson’s article on the “unitary executive theory” I mentioned & linked earlier in the thread. ↑→

https://masto.ai/@Nonilex/115684689986721167

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

The Sinking Fund Commission has come up several times. Historians & legal scholars regard it as the nation’s first #independent agency. Created in 1790 by the first #Congress, the 5-member commission approved payments to settle America’s Revolutionary War debts.

The commission’s structure was proposed by #AlexanderHamilton, who saw it as a way to insulate members from #political pressures.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #SeparationOfPowers 🧵

The group included some members – like the vice president – who could not be fired at will by the president. #Hamilton, then the Treasury Secy, served on the first Sinking Fund Commission alongside Secy of State #ThomasJefferson, his bitter political rival.

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵

Several conservative #SCOTUS justices have signaled for years that they were ready to overturn the 1935 precedent — #HumphreysExecutor v. US — at issue today.

CJ #JohnRoberts wrote in a 2010 opinion in #FreeEnterprise Fund v. Public Company Oversight Board that the president’s #power generally includes “the authority to remove those who assist him in carrying out his duties. Without such power, the president could not be held fully accountable for discharging his own responsibilities.”

#law 🧵

During #Trump’s first term in 2020, #SCOTUS took another step toward expanding the president’s authority to oust #independent ofcls. In a 5-to-4 decision in #Seila Law LLC v. #CFPB, the court said the structure of the CFPB was unconstitutional because it did not allow the president to fire the director without cause.

But the decision distinguished between government agencies run by a single director & those led by multimember commissions that “do not wield substantial executive power.”

#law 🧵

Justices #ClarenceThomas & Neil #Gorsuch said they were eager to go further. The 1935 precedent, Justice Thomas wrote, “poses a direct threat to our constitutional structure &, as a result, the liberty of the American people.”

In its recent emergency orders, #SCOTUS has also signaled that it is now poised to give the president more direct #power over the multimember commissions as well.

#law #HumphreysExecutor #ActivistCourt #Trump #Autocracy #ExecutiveBranch #SeparationOfPowers #Congress 🧵

“Because the Constitution vests the executive power in the president,” the majority said in an unsigned opinion in May, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”

#law #HumphreysExecutor #SCOTUS #ActivistCourt #Trump #Autocracy #power #ExecutiveBranch #SeparationOfPowers #Congress 🧵