Trump’s Penchant for Firing Sets Up Independent Agency Battle

President-elect Donald Trump breaking tradition—and potentially the law—by firing leadership at independent agencies after he takes office in January would likely compel the US Supreme Court to rethink removal protections for those officials.

Democrats on the Equal Employment Opportunity Commission appear to be prime termination targets because they’re on track to retain majority control of the agency into 2026.

The same goes for Democrats at the National Labor Relations Board, provided that its current chair wins Senate approval for another five-year term before December’s lame-duck congressional session expires. Management lobbyists raised that possibility in the immediate aftermath of Trump’s election victory.

Depending on how broadly Trump tries to follow through on his campaign promise to “dismantle the deep state,” he might sack leaders at other agencies governed by bipartisan, multi-member bodies, such as the Federal Communications Commission, the Federal Trade Commission, the Securities and Exchange Commission—even the Federal Reserve System.

Terminations at major independent agencies would rock the administrative state and test the durability of board and commission members’ for-cause removal shields. Job protections—along with leaders having staggered terms in office, partisan balancing on boards and commissions, and freedom from White House oversight on rulemaking—are what’s supposed to keep those agencies independent from the executive branch.

The Supreme Court has axed some removal protections, giving the president the power to fire independent agency directors without cause. But for-cause shields for multi-member bodies have survived thanks to Humphrey’s Executor v. US, a 1935 decision that upheld safeguards for FTC commissioners.

The high court in October passed on a chance to reconsider that 89-year-old precedent in a case involving the Consumer Product Safety Commission, despite several conservative justices criticizing its reasoning in recent years.

“The court has laid enough breadcrumbs to signal that it doesn’t think Humphrey’s is right,” said Saikrishna Prakash, a constitutional scholar at the University of Virginia. “But that’s not the same thing as whether the court thinks Humphrey’s should be overturned.”

Legitimizing Terminations

A presidential administration would normally want a legal opinion from the Justice Department’s Office of Legal Counsel, or at least the White House counsel, saying Humphrey’s Executor is invalid before firing independent agency leaders, law professors said.

That type of memo could help the administration publicly by providing legal cover and internally by assuaging concerns about violating the law, they said.

“If people feel like they’re doing something illegal, having an OLC opinion can help with that concern,” said Zachary Price, a law professor at the University of California-San Francisco and a former OLC attorney.

Politically motivated firings can go wrong for presidents, as evidenced by the fallout from President Richard Nixon’s efforts to expel a special prosecutor in 1973’s “Saturday Night Massacre,” Price said.

Courtroom Counterpunch

Terminations that violate Humphrey’s Executor would all-but certainly trigger litigation.

Victoria Nourse, a Georgetown University law professor who also serves as the vice chair of the US Commission on Civil Rights, said she’d be “delighted” to be fired from her government post—in order to challenge the violation of her for-cause protections.

One potential wrinkle that could differentiate lawsuits against a Trump firing and previous cases over dismissals—and invite Supreme Court review of Humphrey’s Executor even if a majority supports that precedent—is the remedy a fired official might seek.

The plaintiff in Humphrey’s Executor, as well as those in the famous removal cases Myers v. US and Wiener v. US, sued for back pay. But if fired officials want to actually stymie bids to dismiss them, then they would also seek reinstatement.

The Legal Path

Trump could sack board and commissioner members without explicitly violating their removal protections by manufacturing a cause, such as a disagreement on the view of a law or failure to carry out an order.

But that would invite court battles over the scope of the allowable causes for removal—which are “inefficiency,” “neglect of duty,” or “malfeasance in office” in most laws—and spark debate about the president’s power.

Humphrey’s Executor implies that mere policy disagreement is insufficient for a for-cause removal, said Ilan Wurman, who teaches constitutional and administrative law at the University of Minnesota. That precedent would need to be overturned for an agency board member to be dismissed for failing to follow an order, he said.

Attempts to legally fire an official would, depending on the statute, trigger some sort of formal process. For example, the National Labor Relations Act calls for “notice and hearing.”

President William Taft’s 1913 terminations of two Board of General Appraisers members—the only dismissal of agency officials with for-cause protections and due-process requirements—provide clues about procedure. Taft appointed an investigative committee that produced a report and recommendations, according to a University of Richmond Law Review article on the incident.

‘Unknown Consequences’

Whether the end of removal protections would damage independent agencies is unclear. Surveys with officials from the Obama and first Trump administrations show that, compared to executive agencies, independent agencies are less influential, no more expert, and not particularly insulated from political pressure, according to a Cornell Law Review article.

“It’s not a great system,” said Neal Devins, a law professor at the College of William & Mary and co-author of the article critiquing the independence of independent agencies. “But maybe it should be left alone because of all the unknown consequences of changing it in a politically polarized world.”

Trump would be legally barred from packing most boards and commissions with GOP appointees—a restriction that hasn’t generated much controversy—although he could leave Democratic seats open.

The NLRB is an outlier, as its bipartisanship is a norm rather than a legal requirement. Regardless, it’s an important part of how the agency accomplishes its goals, said William Gould, a former NLRB chairman.

Taking away removal protections and partisan balance would “diminish integrity and further politicization, and thus undercut the rule of law in the workplace,” he said.