Last week, Gwynne Wilcox, former Chair of the National Labor Relations Board sued President Trump, demanding her reinstatement. She believes her firing is unconstitutional because long standing precedent protects heads of independent agencies from removal.
Unfortunately for Wilcox, the conservative majority Supreme Court is unlikely to rule in her favor as President Trump’s action falls in line with the legal Right’s long term goal of ending independent agencies and establishing robust executive control over the federal bureaucracy.
Wilcox is relying on the 1935 case Humphrey’s Executor v. US, where the Supreme Court held that heads of agencies which yield “quasi legislative or judicial” power cannot be removed without cause. Humphrey’s Executor and its successor case, Morrison v. Olson are the bedrocks of modern administrative law. In Morrison, the Supreme Court further limited the President’s removal power by expanding Humphrey’s Executor’s ruling to nearly all officers of the United States.
But the Court only achieved this by inventing a legal test that prioritizes independent agencies’ technocratic role over the Constitution’s structure, which solely vests the President with the executive power — including the power to fire federal bureaucrats. At the time, conservative Justice Antonin Scalia was the lone dissenter in Morrison and argued that the removal power was imperative to check abuses of government.
Scalia’s iconic dissent in Morrison represents the legal Right’s historic skepticism of independent agencies and shows how they favor expanded executive control of the federal bureaucracy — a view they have held since the Nixon administration. This skepticism has resulted in the rise of the Unitary Executive Theory: a theory of executive power that argues that because the Constitution solely vests the President with executive power, the President exclusively wields power over all executive agencies.
Under the Unitary Executive Theory, independent agencies aren’t really independent because they are executive agencies utilizing executive power — meaning they are subject to executive control. Unitary Executive Theory has become popular in conservative legal circles, notably within organizations like the widely influential Federalist Society.
Conservatives have good reasons to oppose independent agencies. Historically embedded bureaucrats have fought against conservative presidents’ attempts to deregulate by stalling the deregulatory agenda.
In the first Trump Administration, bureaucrats worked to stall Trump’s agenda by withholding expertise or by refusing to inform superiors of relevant litigation. Conservatives dislike this because they think the federal bureaucracy should not work against the people’s elected executive. They also believe there is a democratic interest in enhanced executive control over agency personnel. Conservative thinkers like political scientist John Mariani warned that agencies which are not accountable to democratic pressures create rules harming constituents they try to serve, resulting in tyranny.
The conservative legal movement’s hope is that by restoring executive removal powers over independent agencies, they will restore democratic pressures to administrative agencies and create better policies in line with the public’s needs.
Their influence was apparent in 2020, when the Supreme Court chose to roll back Morrison’s expansive holding in Seila Law v. CFPB. In Seila, the Court limited Morrison’s good cause protections to independent agencies with multi-member boards. What’s notable is that some members of the Supreme Court’s conservative block were dissatisfied with Selia’s outcome, with Justices Clarence Thomas and Neil Gorsuch calling Humphrey’s Executor’s survival, ““[A] direct threat to our constitutional structure and, as a result, the liberty of the American people.” Because Amy Coney Barrett is now a Justice, the Court has become more conservative than it was when Seila was decided. This means the Justices are ready to take a renewed challenge to independent agencies as the legal Right has cemented its place on the Supreme Court.
Fortunately for the legal Right, President Trump won’t face much resistance at the high court on his decision to fire Chairwoman Wilcox, as Justices Gorsuch, and Thomas already want Humphrey’s Executor and its successor cases overturned. Furthermore, with Barrett on the Court, Chief Justice Roberts can no longer dilute the conservative bloc’s decisions. President Trump has rightly assessed that this Court is poised to overturn Humphrey’s and its progeny and acted swiftly to achieve this goal.
Gwynne Wilcox’s lawsuit provides the Supreme Court’s conservative wing the chance to finish what the conservative legal movement has sought for decades and overturn Humphrey’s Executor. By doing so, they will fulfill the conservative legal movement’s aim of restoring democratic accountability to an administrative state which has long been disconnected from the elected executive.
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Ryan Silverstein is a J.D. Candidate at Villanova University and a fellow with Villanova’s McCullen Center for Law, Religion and Public Policy. His work has appeared in Fox News, the New York Post, and the Daily Wire.
The views expressed in this piece are those of the author and do not necessarily represent those of The Daily Wire.
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