The Supreme Court Should Resist Handing Sweeping Removal Powers to this President in the Name of Constitutional Purity
If an authoritarian weren’t in the White House, conservative justices could have justified doing so
The Trump administration’s push to roll back limits on the president’s “removal power” did not come out of nowhere. Its effort to fire principal officers at the Federal Trade Commission, the National Labor Relations Board, and beyond has a long pedigree in the sane, buttoned-down wing of the conservative legal movement.
But while the argument for handing a president this authority has theoretical merit, the Supreme Court would be very unwise to bless Trump’s actions.
A Second-Best World
The conservative campaign for sweeping presidential removal power dates to at least 1988. That year, Justice Antonin Scalia—in a solo dissent that has since taken on near-mythic status—opined that, under the Constitution, a statute may not “deprive the President of the United States of exclusive control over the exercise of [executive] Power.” Two decades later (but still long before Trump), Chief Justice John Roberts—this time writing for the majority—declared that the president needs the power to “oversee the faithfulness of the officers who execute” the laws on his behalf.
Given these views, Trump’s firings of principal officers, though rash, do not belong in the same category as Trump’s more deranged excesses, such as his political attacks on law firms or his campaign to imprison detainees abroad without due process—measures that judges across the ideological spectrum have slapped down.
The “removal power” should not be confused with the notion, floated by Trump and his allies, that the president may purge the civil service. We are dealing, rather, with the president’s authority over the high-level political appointees—those referred to, in Article II of the Constitution, as “Officers of the United States”—who lead federal agencies.
When it comes to such officials, Scalia and Roberts, along with many other conservative judges, offer not only a plausible reading of the Constitution’s original meaning, but also a prudent approach to managing our sprawling administrative state—prudent, that is, in a world without Trump.
In a constitutional system working as the Founders intended, there would be no problem with the president having the power to remove all officers at will. That arrangement would ensure an energetic and accountable executive branch. In Hamilton’s words, “unity” in the executive enables “decision, activity, secrecy, and dispatch,” while supplying “a single object for the jealousy and watchfulness of the people.” He warned that diffusing executive power would be dangerous, as doing so would cause “the restraints of public opinion” to “lose their efficacy,” with the buck stopping nowhere. A unified executive, by contrast, keeps the bureaucracy responsive to the president’s agenda, giving us a government that, to paraphrase Roberts, benefits from expertise but is not ruled by experts.
But that logic assumes a virtuous republic—the kind of society men like Hamilton, Madison, and Adams believed essential for our Constitution to endure. “To suppose that any form of government will secure liberty or happiness without any virtue in the people,” Madison wrote, “is a chimerical idea.”
We do not live in that republic. Our electorate does not reliably choose presidents capable of exercising vast authority with restraint. Our Congress lacks the spine to impeach when it matters. We reside in a second-best world, in which our Supreme Court is limited to second-best choices.
The Reckoning
In 1935, the Court held that Congress may grant certain officers protection against removal except “for cause.” The case, Humphrey’s Executor v. United States, concerned the FTC, whose commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Motivated in part by unease with Roosevelt’s New Deal, the Court upheld the restriction.
The Roberts Court has spent years laying the groundwork to overturn Humphrey’s Executor. In Seila Law v. CFPB (2020), Roberts all but confined Humphrey’s Executor to its facts, announcing, for the Court, that it applies only to “multimember expert agencies that do not wield substantial executive power.” That description covers at most only a small sliver of modern independent agencies. Seila Law rejected an attempt to limit the president to “for-cause” removals for the head of a single-director agency, but its logic and rhetoric pointed toward a broader reckoning one day.
As Trump’s firing spree continues, that day may be here. On May 22, the Supreme Court stayed lower-court orders blocking the removal of two officials—Gwynne Wilcox of the NLRB and Cathy A. Harris of the Merit Systems Protection Board. That move must, Justice Elena Kagan warns in a dissent, reveal the majority’s intent to overturn, or gut, Humphrey’s Executor at the earliest opportunity.
The Court’s conservative majority has good reason to view Humphrey’s Executor with skepticism. The decision rests on a nonsensical distinction, under which the FTC is a “quasi-judicial” and “quasi-legislative” agency. There are no “quasi” branches in our system of government. In recent years, the Court—with liberal justices signing on—has acknowledged that agencies like the FTC exercise executive power (even if their activities sometimes take legislative and judicial forms). While the liberal justices dissented forcefully in Seila Law and challenged the conservatives’ embrace of a so-called unitary executive, they didn’t defend Humphrey’s Executor on its own terms. They focused on Congress’ power over government offices; a competing view of the historical record; and the functional benefits of independent agencies. Writing on this site recently, Peter Shane, a law professor at New York University, made similar points.
The fate of the removal power rests with the Court’s three moderate conservatives: Chief Justice Roberts, Justice Brett Kavanaugh, and Justice Amy Coney Barrett. There is little doubt that the Court’s three arch-conservatives—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—will vote to overturn Humphrey’s Executor. Roberts, Kavanaugh, and Barrett must decide whether to join them.
Constitutional Purity in an Impure World
As the Supreme Court’s May 22 order confirms, the conservative justices are clearly tempted—this is their chance to achieve an abiding goal. My message to them is simple: Don’t.
Do not view Humphrey’s Executor in isolation. Do not view its status as part of some exercise in constitutional purity. Understand that, by overturning it, you’d be handing power to an authoritarian, exacerbating a perilous moment for the country. Do the right thing and defend the checks on an aspiring autocrat that still exist.
Crucially, I am not asking Roberts, Kavanaugh, and Barrett to adopt some novel doctrine or to become “judicial activists.” They need not even change their views about the removal power’s original meaning. Their task is simply to wield their power responsibly, and to uphold the law as it exists. That, indeed, is the conservative thing to do. There is an opinion they could write—modest, measured, respectable—that would affirm Humphrey’s Executor and leave the current limits on the removal power intact.
Here are the three main issues that opinion must address:
1. The Scope of Humphrey’s Executor
The first hurdle, for a majority intent on upholding Humphrey’s Executor, is the claim that upholding Humphrey’s Executor doesn’t mean anything.
The Trump administration contends that Humphrey’s Executor is a “narrow exception”—one that no longer applies even to the FTC itself. The FTC of 1935, the argument runs, is the only agency for which Humphrey’s Executor blesses removal restrictions. “What matters,” Seila Law says, “is the set of powers the Court” in Humphrey’s Executor “considered as the basis for its decision.”
But the FTC of 1935 already wielded executive power, and the Court considered that power in Humphrey’s Executor. As the decision notes, the FTC could enforce the law in court. Its powers have indeed expanded—it can now, for instance, obtain court orders more easily than before—but disputes over the removal power should not devolve into disputes over the precise calibration of agency authority. In such a world, observes Judge Don Willett, a conservative on the Fifth Circuit, it would be “hard to tell how much [executive] power is required before an agency loses protection under the Humphrey’s exception.”
Writing for the Court in Collins v. Yellen (2021), Justice Alito rightly warned that “courts are not well-suited to weigh the relative importance” of disparate agencies’ authority. He rejected the idea that “the constitutionality of removal restrictions hinges on such an inquiry.” In Collins, the Court was clarifying that it would not draw fine-grained lines among single-director agencies; they all lack removal protection. But the same logic applies here. Courts should not draw fine-grained lines among traditional multi-member commissions; they all ought to enjoy removal protection.
To uphold Humphrey’s Executor should be to uphold the independence of the familiar multi-member agencies whose structure was, until recently, broadly accepted.
2. Stare Decisis
“Stare decisis et non quieta movere” means “To stand by things decided and not disturb what is settled.” As Justice Kavanaugh will tell you, the principle reaches back to the Founding. Fidelity to precedent ensures, he writes, quoting the eminent 18th-century jurist William Blackstone, that “the scale of justice” is “even and steady”—that it is not upended by “every new judge’s opinion.”
By definition, stare decisis has teeth only when the justices encounter a precedent with which they disagree. That a decision is wrong, in their eyes, is the start, not the end, of any argument over whether stare decisis applies. As the Court has said many times, there must be some special justification, beyond sheer error, for overturning a precedent.
There is no such justification for overturning Humphrey’s Executor.
To begin with, the decision is not even obviously wrong. True, its reasoning is very poor. (“The mere retreat to the qualifying ‘quasi,’” Justice Robert Jackson mused in 1952, “is implicit with confession that all recognized classifications have broken down.”) But the result is quite possibly correct. The history of the removal power is a subject of spirited judicial and scholarly debate. Justice Kagan’s dissent in Seila Law is excellent. There may be stronger and weaker answers here, but there are no definitive ones. The Framers did not exactly write with clarity on this question in the Constitution, as they did with the appointments power.
The Court often asks whether a precedent is “unworkable”—whether it has sowed confusion in the lower courts or distorted other areas of law. Humphrey’s Executor does neither. If anything, the Court could declare that its rule is straightforward: traditional multi-member agencies get removal protections; novel structures do not. That’s already the line taken in Seila Law (no protection for single-director agencies) and Free Enterprise Fund v. PCAOB (2010) (no double-level removal protections).
The rule is not just workable, but sensible. Independent agencies have a venerable history that stretches back to the FTC (1914), if not the Interstate Commerce Commission (1887). They may not reflect a pristine form of the separation of powers, but neither are they pure constitutional heresy. While on the D.C. Circuit, future Justice Kavanaugh went so far as to say that “multi-member bodies reflect the larger values of the Constitution.”
That last point answers perhaps the biggest objection to Humphrey’s Executor, namely, if commissioners aren’t elected, and can’t easily be fired by someone who is, where’s the democratic legitimacy? But these agencies are created by an elected Congress. Their officers are nominated by an elected president and confirmed by an elected Senate. Once appointed, they get summoned to the White House and are also grilled by Congress at oversight hearings.
The Court sometimes asks whether a precedent has produced bad consequences. Here, however, the bad consequences would come from overturning the precedent. Looming behind all else is the Federal Reserve. That independent body sets interest rates free from political meddling—a buffer that has served the country well. If the Fed became the plaything of this impetuous president, the result could be a financial crisis. In its May 22 order, the Court insists that the case before it doesn’t necessarily implicate the Fed. But in going out of its way to say so, the Court protests too much. Justice Kagan, in dissent, accuses the majority of cynically setting the stage for “a bespoke Federal Reserve exception.”
The Roberts Court has chucked a string of notable precedents. (If you ask me, many of those precedents had it coming, and the conservative majority has nothing to apologize for.) But stare decisis exists for a reason: It keeps the law stable, consistent, and predictable. Roberts, Kavanaugh, and Barrett shouldn’t overturn decisions in order to check boxes on an ideological wish list. Holding their noses and preserving Humphrey’s Executor would be a good way to show that they know where to stop.
3. Remedy
The final question the Court needs to address to preserve Humphrey’s Executor is: What is the remedy?
There are three options: an injunction, a declaratory judgment, and a writ of mandamus.
To issue an injunction, a court could invoke its inherent equitable powers. When they dig into it, the justices will find 19th-century cases that say blocking the removal of executive officers wasn’t such a power, and 20th-century cases that say, in essence, never mind. At a recent oral argument, D.C. Circuit judge Gregory Katsas—no one’s idea of a liberal—asked why courts should be “fussing over” the arcane distinctions between injunctions and mandamus. Perhaps the Supreme Court’s conservatives will agree. More likely, they’ll cling (as they have in past cases) to the historical lines. If they do, injunctions are out.
A court can undoubtedly issue a declaratory judgment, so the question of authority is resolved. But such a judgment is limited to merely spelling out the legal rights of the parties; it doesn’t compel anyone to act. So what would it accomplish? In a 1992 decision, the Court “assume[d]” that a president would “likely abide” by a district court’s reading of a statute, even if he wasn’t strictly bound by it. That assumption no longer holds. Trump would see a declaratory judgment not as a constraint, but as a challenge.
That leaves mandamus—an order, in this case, directing Trump to reinstate the fired officials. This was apparently a standard remedy, in the English courts of old, for addressing wrongful removal. Mandamus is an extraordinary remedy, reserved for clear violations of law. But Trump’s defiance of the statutory removal restrictions could not be clearer.
Nothing prevents the courts from ordering reinstatement via mandamus except the fear that it might look aggressive. As Judge Neomi Rao, a conservative on the D.C. Circuit, frames things, issuing such a writ “threatens to send” the judiciary “headlong into a clash with the Executive.” But it is Trump who is creating this collision—not the courts.
Yes, Trump could ignore a writ of mandamus. A president can always manufacture a constitutional crisis by defying a court order. Trump could blow off an order enjoining the removal of an officer—or the detention of college students, or a purge of federal employees, or the impoundment of federal funds. “At that point,” Judge Laurence Silberman once wrote, “we would be headed, in accordance with our temperament, either to the basement or the barricades.”
Maybe that’s where we’re going. But it’s no use for courts to preemptively retreat every time they fear the president won’t listen. If that’s the plan, the republic is already lost.
© The UnPopulist, 2025
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I just don’t think the test of constitutional interpretation should be who sits in the Oval Office. If you think SCOTUS should decide cases based on whether Harris (or simply “not Trump”) or Trump sits there, I think you’ve got it all wrong.
The Federalists could imagine not have the dimensions of the administrative state two centuries later, but had they been able to, they would likely have comprehended the dangers to the stability of American society if, as Greg puts it in an earlier post, the meaning of regulatory statutes is left to the interpretation of the president and the flunkies that he appoints.
Hamilton certainly would have been aghast at the economic consequences.