“Humphrey’s Executor is important because it essentially unleashed the modern administrative state,” John Shu, a constitutional law scholar and expert who served in both Bush administrations, wrote for Bloomberg last month. Shu previously told the Washington Examiner that “every single person works in the executive branch” because of the sitting president while affirming the 1935 case would be ripe for the justices’ review.

The case has long protected regulatory bodies such as the Federal Trade Commission and the Securities and Exchange Commission from direct political influence, but Trump’s legal team argues that the precedent improperly ties the president’s hands. With a Supreme Court majority chipping away at similar restrictions recently, Trump and his allies hope to strike down the precedent entirely.

Conservative legal advocates argue that Humphrey’s Executor has allowed unelected bureaucrats to wield executive power without accountability, undermining Article II of the Constitution, which vests executive authority in the president. They contend that independent agencies act as a fourth branch of government insulated from both Congress and the White House and that the president should have direct control over personnel within the executive branch. Liberals, on the other hand, see the push to overturn the precedent as an attempt to consolidate power in the presidency, eroding institutional safeguards that prevent executive overreach. They warn that dismantling these protections could politicize regulatory agencies and make them vulnerable to influence from whichever party controls the White House.

“An opportunity to put a nail in the coffin of Humphrey’s Executor may well arrive in the near future,” conservative judicial advocate and president of Judicial Crisis Network Carrie Severino wrote for the National Review last month, pointing to legal challenges to Trump’s removal of commissioners with the National Labor Relations Board and the Equal Employment Opportunity Commission.

Trump has sustained a handful of losses at the D.C. District Court in cases challenging his dismissals of independent agency leaders, but the fight is far from over. Last week, a three-judge panel on the D.C. Circuit Court of Appeals gave Trump a win in an important layoff battle.

Acting Solicitor General Sarah Harris has already signaled the Justice Department’s intent to bring the issue before the Supreme Court. If successful, the ruling could give future presidents far greater control over the federal government than they’ve had in nearly a century.

What is Humphrey’s Executor?

The case stemmed from a dispute between former President Franklin Roosevelt and an FTC commissioner he tried to fire in 1933. At the time, the law stated that FTC commissioners could only be removed for inefficiency, neglect of duty, or malfeasance. Roosevelt argued that he had the right to fire the commissioner for any reason, but the Supreme Court disagreed, ruling in 1935 that Congress could limit a president’s removal power regarding independent agencies.

That decision created a legal firewall between the White House and agencies that perform regulatory, investigative, and enforcement functions. By requiring “for cause” removal, the ruling ensured these agencies could operate free from direct political interference. Today, it still governs the structure of the FTC, the SEC, the NLRB, and other similar bodies.

What is the goal?

Trump and his administration have been working to break down the legal barriers preventing presidents from removing independent agency officials at will. Through executive orders and legal challenges, they aim to bring the issue before the Supreme Court and overturn Humphrey’s Executor because Trump’s allies believe that persistent challenges to Trump’s removals have made it necessary.

Harris outlined a key legal shift Trump seeks, declaring in a letter last month that the DOJ is prepared to argue for reversing the ruling.

Unlike some of Trump’s more aggressive executive moves, such as his effort to undo birthright citizenship, his push to remove specific agency heads may better withstand legal challenges from the Left.

“To the extent that Humphrey’s Executor requires otherwise, the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf, and which has already been severely eroded by recent Supreme Court decisions,” Harris wrote in her letter last month to Rep. Jamie Raskin (D-MD), the ranking member on the House Judiciary Committee.

In recent years, the Supreme Court’s conservative majority has signaled a growing openness to expanding presidential removal power. In Seila Law LLC v. Consumer Financial Protection Bureau, the justices ruled that the director of the CFPB could not be shielded from removal, with Chief Justice John Roberts writing that such protections limited the president’s constitutional authority. 

However, the 2020 ruling stopped short of overturning Humphrey’s Executor outright. However, Justices Clarence Thomas and Neil Gorsuch signaled that the 1935 ruling should be struck down.

“Humphrey’s Executor, I think, is on the chopping block,” said Ben Flowers, a former solicitor general of Ohio, during a Federalist Society virtual forum last month.

“If you have someone wielding executive power who’s not ultimately answerable to some elected official, then the president can dodge responsibility. There can ultimately be a loss of liberty because people are subject to the authority of someone who they didn’t elect and who can’t be removed by someone who they elected,” Flowers said of independent agency heads still fighting against their removals by Trump.

What happened in the Hampton Dellinger case?

One of the biggest tests of this legal fight came in the case of Hampton Dellinger, the former Special Counsel for whistleblower protections. Trump fired Dellinger, and he sued, arguing that his removal was unlawful under federal law, which allows the Special Counsel to be fired only with cause.

For legal experts watching the case, Dellinger’s lawsuit represented a key opportunity to challenge Humphrey’s Executor in the Supreme Court. But after losing in the D.C. Circuit last, Dellinger withdrew his case, removing what some saw as the quickest chance for a direct challenge to the precedent.

“I’m stopping the fight because [the] circuit court judges reviewing the trial court decision in my favor granted the government’s request that I be removed from office while the case continues,” Dellinger wrote in a March 6 letter.

“This new ruling means that OSC will be run by someone totally beholden to the President for the months that would pass before I could get a final decision from the U.S. Supreme Court,” Dellinger added.

In its opinion on Monday, published days after Dellinger’s loss, the appeals court said Supreme Court rulings barring restrictions on the president’s power to fire the heads of agencies with one top officer probably would have extended to Dellinger. That represented a win for Trump’s view of presidential removal power.

“In sum, the government has demonstrated a strong likelihood of success on the merits of its appeal,” according to the decision by Judges Karen Henderson and Justin R. Walker, appointed by former President George W. Bush and Trump, respectively, and Patricia Millett, an appointee of former President Barack Obama.

Richmond University Law School Professor Carl Tobias told the Washington Examiner that Dellinger’s legal battle would have been an expensive, drawn-out process that likely would not have been worth the undertaking to maintain his position.

Tobias also agreed that Trump’s firing of Dellinger was part of a broader effort to weaken the legal protections of government employees.

“Trump and his staff have intentionally issued Executive Orders that encourage SCOTUS to revisit and overturn past precedent that Trump believes makes it more difficult for presidents to remove independent agency members without proper notice & cause,” Tobias said.

What other cases could lead to the Supreme Court reexamining Humphrey’s?

Even though Dellinger’s case is now off the table, other legal battles could still be used to challenge Humphrey’s Executor before the Supreme Court.

One of the possible test cases involves Cathy Harris, the former chairwoman of the Merit Systems Protection Board, who Trump also dismissed in a similar fashion to Dellinger. Her lawsuit remains active and could provide another opportunity for the Supreme Court to revisit the issue.

In a hearing last week, DOJ lawyer Jeremy Newman argued before Judge Rudolph Contreras that Humphrey’s Executor should not be automatically applied to the Harris case. The administration’s legal team contends that Congress does not have the constitutional authority to limit the president’s power to remove executive officials, a stance that aligns with pre-Humphrey’s Supreme Court decisions on presidential authority.

Tobias sees Harris’s case as comparable to Dellinger’s and believes more independent agency officials could face similar dismissals under Trump’s legal strategy.

“Moreover, I believe that there are other independent agency members who could receive similar treatment from Trump,” Tobias said. “Trump has given no indication that he intends to stop firing federal employees … regardless of Congress’s intent in authorizing their employment and in structuring their leadership to have independence from the president.”

FEDERAL WATCHDOG HEAD ENDS LAWSUIT CHALLENGING TRUMP FIRING

With conservative justices already signaling their skepticism of Humphrey’s Executor, the nearly century-old precedent may soon face its greatest test yet.

If overturned, it would mark a clear expansion of presidential power, allowing future occupants of the White House to reshape independent agencies in ways not seen since before the New Deal.