President Trump has fired multiple government officials. Can he?
President Trump has fired multiple government officials. Can he?
President Donald Trump’s firings of dozens of government officials have raised questions about whether or not those moves are legal. This week, one lawsuit is challenging the president’s power over the various agencies set up by Congress to regulate all sorts of things — from stock markets to telecommunications.
Gwynne Wilcox is suing the Trump administration for removing her from the National Labor Relations Board before her five-year term was up. No president has done that before in the 90-year history of the five-member bipartisan board.
Last week, Trump also removed two members of the Equal Employment Opportunity Commission, all Democrats. The NLRB-related lawsuit could pave the way for the Supreme Court to weigh in. And Rachel See, senior counsel at the law firm Seyfarth Shaw who previously served as counsel at the EEOC and the NLRB, said the stakes are high.
“I think the firings that we saw are an attempt to set up the Supreme Court to overrule a case from 1935 called Humphrey’s Executor, which limited the power of the president to fire members of some independent commissions. I think conservative legal scholars have wanted the supremes to overrule Humphrey’s for a while,” she said. “There’s been multiple attempts to get the Supreme Court to revisit it, and I think the firings that we’re seeing will create excellent vehicles for the Supreme Court to take up that issue again.”
See counts maybe three votes so far ready to overturn past precedent. David Driesen thinks there are as many as six. He’s a law professor at Syracuse University and has written critically of the idea of an executive with broad control over agencies.
“A lot of the agencies that are independent are independent for extremely good reasons, and all functioning democracies have independent agencies in certain areas,” Driesen said.
“A big one is the Federal Election Commission. Election commissions are independent or bipartisan in just about every functioning democracy, or every one I know of. Same thing with the Federal Reserve and other independent agencies. All good, well-functioning governments recognize that you need to have independence for the central bank, because they need to make careful, technocratic economic decisions.”
There is a conservative school of thought in support of the Trump administration’s moves called “unitary executive theory.” It really picked up steam with President Ronald Reagan.
Steven Calabresi, a professor of law at Northwestern University, helped advance this theory with both the Reagan Justice Department and the Reagan White House. He’s written a book on the subject and is the co-chairman of the conservative and libertarian Federal Society. He spoke with “Marketplace Morning Report” host Nova Safo for more and the following is an edited transcript of their conversation.
Nova Safo: When you were part of the Reagan White House and the Justice Department, then, you helped advance the unitary executive theory, and have written extensively about it since. Can you explain what it is and why you support the idea?
Steven Calabresi: The theory of the unitary executive is the theory that the president is the head of the executive branch. He has all the executive power, and he has the authority to fire subordinates for policy reasons — if they disagree with him and if he wants to do so.
Safo: Now, this would break though with nearly 100 years of legal precedent, as well as laws written by Congress that limit a president’s ability to fire. How do you square those two things?
Calabresi: There was a case in 1935, Humphrey’s Executor, which said that there might be an exception to presidential removal power. In recent years, the U.S. Supreme Court, under Chief Justice Roberts, has construed Humphrey’s Executor more and more narrowly. And, in my view, the court is ready to overrule Humphrey’s Executor, and I think it should overrule Humphrey’s Executor. The statutes that Congress has passed that purport to limit presidential removal power are quite simply unconstitutional.
Safo: As you know, it’s not hard to find legal scholars who strongly disagree with you and the theory you just laid out. Now, what do you say to folks who are concerned about, really, any president being able to, for example, fire the Federal Reserve chair, if the chair of the Federal Reserve doesn’t do what the president wants him to do? How would you respond to those concerns?
Calabresi: Well, I think the fact the president has the theoretical power to fire anyone in the executive branch doesn’t mean that he will exercise that power, or choose to exercise that power. President Trump, for example, has not tried to fire the chair of the Federal Reserve Board, probably in part because doing that would rattle the stock exchange and the securities markets. Congress will push back against the illegitimate firing of subordinate executive officials, and the fact that Congress has not pushed back against the firing of officials that President Trump has done in the last two weeks indicates that he’s not abusing the firing power.
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