When Gwynne A. Wilcox sued President Trump on Wednesday over her firing from the National Labor Relations Board, her lawsuit included an unusually candid statement. Ms. Wilcox knew, she said, that Mr. Trump was hoping she would take him to court.
“The president’s action against Ms. Wilcox is part of a string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress’s power to create independent agencies like the board,” her lawyers wrote, adding that she “has no desire to aid the president in establishing a test case.”
The alternative, the suit said, was even less attractive: surrender.
Ms. Wilcox is right to be wary. If the case reaches the Supreme Court, as is likely, the court’s conservative majority will be receptive to Mr. Trump’s argument that presidents have unlimited power to remove members of independent agencies. Such a ruling would accomplish a major goal of the Trump administration and the conservative legal movement: to place what they call the administrative state under the complete control of the president.
A foundational precedent from 1935, which ruled that Congress can shield independent agencies from politics, stands in the way of that project. But some conservative justices have been itching to overrule the precedent, Humphrey’s Executor v. United States….
In 2020, the Supreme Court seemed to lay the groundwork for overruling that precedent in a case involving the Consumer Financial Protection Bureau.
The law that created the bureau, using language identical to that at issue in Humphrey’s Executor, said the president could remove its director only for “inefficiency, neglect of duty or malfeasance in office.”
Chief Justice John G. Roberts Jr.’s majority opinion in the 5-to-4 decision struck down that provision, saying it violated the separation of powers.
Chief Justice Roberts drew a distinction between agencies led by a single director, like the consumer bureau, and bodies with multiple members, like the trade commission and the labor board, but several justices said they did not think the differences were meaningful.
In language that anticipated the court’s decision in July granting Mr. Trump, then a private citizen, substantial immunity from prosecution for conduct during his first term, Chief Justice Roberts said the presidency requires an “energetic executive.”
“In our constitutional system,” he wrote in 2020, “the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead.”
The reasoning in the chief justice’s opinion left Humphrey’s Executor on life support. Two members of the court — Justices Clarence Thomas and Neil M. Gorsuch — would have pulled the plug right away….