Dive Brief:
- One month after former National Labor Relations Board member Gwynne Wilcox filed a lawsuit against President Donald Trump and Board Chair Marvin Kaplan for her firing, attorneys argued in a public hearing over the constitutionality of a 90-year-old U.S. Supreme Court precedent (Wilcox v. Trump). The 1935 ruling in Humphrey’s Executor v. United States reaffirmed Congress’ power to create independent boards and commissions and denied the president the ability to remove members of those agencies at will.
- The plaintiff’s counsel argued that the U.S. does not have a system that recognizes “a king” but instead a Congress and a separation of powers. Counsel said it’s notable that this is the first time a president has challenged the Humphrey’s Executor precedent.
- Meanwhile, the defense said that the U.S. Constitution grants the president sole executive power, and that gives the president control over agencies exercising executive roles.
Dive Insight:
Throughout the two-hour hearing, Judge Beryl A. Howell repeatedly acknowledged that the arguments in the District Court were “merely a speed bump” for the parties on the case’s route to the Supreme Court.
In the lawsuit, Wilcox said the lawsuit was the “test case” the president likely wanted after his unprecedented firing of congressionally approved members of independent agencies, including members of the U.S. Equal Employment Opportunity Commission.
Howell said she chose to have a public hearing because “the issue at stake is of extreme importance” and has far-reaching effects for other boards and agencies.
The U.S. Department of Justice has shown it intends to ignore the Humphrey’s Executor ruling, according to a letter sent Feb. 12 by Acting Solicitor General Sarah Harris to Senator Richard Durbin, D-Ill, ranking member of the Judiciary Committee.
In the letter, Harris said DOJ will no longer defend the independence of regulatory commissions, including the NLRB, the U.S. Federal Trade Commission and the Consumer Product Safety Commission. Historically, DOJ defended against the president removing members of the boards without cause, but Harris’ letter characterized those legal protections as “unconstitutional.”
Per Harris’ letter, “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.”
