WASHINGTON — The Supreme Court signaled again Wednesday that it believes the president has the power to fire the leaders of agencies and commissions that Congress said were independent.
Granting another emergency appeal, the justices set aside a Baltimore judge’s order and upheld President Trump’s decision to fire the three Democratic appointees on the Consumer Product Safety Commission.
In a brief order, the conservative majority said agency officials may be fired by the president.
The three liberals dissented.
“Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress,” Justice Elena Kagan said. “By allowing the President to remove commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.”
Justices Sonia Sotomayor and Ketanji Brown Jackson agreed.
The court’s conservative majority has repeatedly sided with Trump and against district judges on matters related to federal agencies, including their spending, staffing and leadership.
They believe the Constitution gives the president the executive authority to control the government, including by firing and replacing the heads of agencies, boards and commissions.
They have ruled for Trump even when his removal orders conflicted with the law as established by Congress.
At issue is whether Congress holds the power to structure the government or whether the president instead has the executive authority to reshape it.
Since 1887, when the Interstate Commerce Commission was established to set railroad rates, Congress has created independent agencies with the aim of giving nonpartisan experts the authority to regulate in the public interest.
The Consumer Product Safety Commission was established in 1972 to be led by five members who were appointed by the president and confirmed by the Senate. They would have seven-year terms and could be fired only for “neglect of duty or malfeasance in office.”
The commission investigates complaints about hazardous products, and it can require warning labels, order their recall or remove them from the market.
In May, the Trump White House told the commission’s three Democratic appointees — Mary Boyle, Alexander Hoehn-Saric and Richard Trumka Jr. — they were “terminated,” but without accusing them of wrongdoing or malfeasance.
They sued in a federal court in Maryland where the CPSC has its headquarters. U.S. District Judge Matthew Maddox, a Biden appointee, ruled the firings were illegal and reinstated the three to their positions.
The judge pointed to the Supreme Court’s 1935 decision that protected the constitutionality of “traditional multi-member independent agencies.”
The court’s opinion in the case of Humphrey’s Executor vs. United States drew a distinction between “purely executive officers” who were under the president’s control and those who served on a board “with quasi-judicial or quasi-legislative functions.”
But the court’s conservatives have hinted they may overturn that precedent.
Five years ago, Chief Justice John G. Roberts Jr. spoke for the court and ruled the director of the Consumer Financial Protection Bureau can be fired by the president, even though Congress had said otherwise.
But since that case did not involve a multimember board or commission, it did not overrule the 1935 precedent.
In late May, however, the court cleared the way for Trump to fire a Democratic appointee on the National Labor Relations Board and a second on the Merit Systems Protection Board.
“Because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf,” the court said then in an unsigned order.
Trump’s solicitor general, D. John Sauer, said that decision should have cleared the way for the firing of the three members of the CPSC.
But the 4th Circuit Court stood behind Maddox’s order.
The Constitution “entrusts Congress with the power to design independent agencies that serve the public interest free from political pressure,” said Judge James Wynn of the 4th Circuit. “Here, Congress lawfully constrained the President’s removal authority. … The district court correctly declined to permit a President — any President — to disregard those limits.”
