Chief Justice John Roberts has consistently demonstrated a commitment to expanding the power of the presidency. He focused particularly on the president’s authority to remove officers from executive agencies. As early as 1983, Roberts, then serving in the Reagan administration, expressed his desire to reconsider the constitutional implications of independent agencies. He wrote in a memo to the White House counsel that “the time is ripe to reconsider the constitutional anomaly of independent agencies.”
This past summer, Roberts was able to realize his long-held goal when the court ruled in Trump v. Slaughter that the president may unilaterally remove those officers leading nearly all of the nation’s federal independent agencies. While the decision has been widely discussed, less attention has been paid to the manner in which Roberts guided the court to this outcome. This process not only sheds light on Roberts’ core conservative principles but also highlights his ability to wield power on a divided court.
A Shift in the Legal Environment
The reversal of Humphrey’s Executor v. United States , a 1935 Supreme Court decision, is central to this narrative. In Humphrey’s , the court upheld congressional restrictions on President Franklin Roosevelt’s ability to remove a Federal Trade Commission commissioner, William Humphrey. Although Congress had specified that an FTC commissioner could be removed only for “inefficiency, neglect of duty, or malfeasance in office,” Roosevelt did not invoke these grounds when firing Humphrey. Instead, he stated, “I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission.”
Humphrey sued for reinstatement and ultimately prevailed before the Supreme Court, although he passed away in 1934. Throughout the 20th century, Humphrey’s was cited alongside Myers v. United States, a 1926 decision in which the Supreme Court rejected a postmaster’s claim that he could not be removed by the president. The court in Myers held that the postmaster was a subordinate of the president and could be removed unilaterally at will, reasoning that the president has “the exclusive power of removal” to ensure that the laws are faithfully executed.
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The court in Humphrey’s drew a distinction between “purely executive” officials, such as the postmaster in Myers, and agency officials, such as FTC commissioners, who perform “quasi-judicial” and “quasi-legislative” duties. As Professor Nathaniel Wald Donahue has explained, “Progressive Era lawyers used the categories of ‘quasi-judicial’ and ‘quasi-legislative’ to refer to administrative bodies that were understood to be executive-branch auxiliaries to the judiciary and legislature.”
In 1988, the Supreme Court applied Humphrey’s in Morrison v. Olson, upholding the “good cause” restriction on the attorney general’s authority to remove an independent counsel. The court credited the distinction between “purely executive” officials and those who exercise “quasi-legislative” and “quasi-judicial” powers, rejecting the argument that the removal restriction should not apply to the independent counsel engaged in prosecution.
When Roberts became chief justice in 2005, Humphrey’s was a valid, longstanding precedent. Over the course of 16 years, through a series of decisions, Roberts eroded this precedent, ultimately leading to its reversal.
Defining the Limits of Authority
The removal trilogy, which includes Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law LLC v. Consumer Financial Protection Bureau, and Trump v. Slaughter, illuminates Roberts’ careful approach to expanding presidential power. In Free Enterprise Fund, Roberts employed three strategies: raising presidential powers over those of Congress, applying a formalistic understanding of the separation of powers, and selectively reading the history of the president’s removal power.
