Will a Supreme Court precedent limiting presidential removal powers survive?

A Supreme Court ruling from the 1930s is getting new attention as President Donald Trump is seeking to fire the head of an independent government agency formed by Congress.

On Feb. 7, 2025, Trump removed Hampton Dellinger as the head of the Office of Special Counsel. Dellinger had been confirmed to the position on March 6, 2024, by the Senate after his nomination by President Joe Biden. Dellinger filed with the district court for relief three days later, which then issued an administrative stay and then a temporary restraining order blocking Trump from removing Dellinger.

The Office of Special Counsel is an “independent federal investigative and prosecutorial agency” tasked with protecting federal employees from reprisals for whistleblowing and with enforcing the Hatch Act, which limits partisan political activity by government employees.

On Tuesday, Feb. 26, 2025, the District Court for the District of Columbia will hear Bessent v. Dellinger after a temporary restraining order (TRO) in the case expires and it considers a motion for a preliminary injunction. Senior Judge Amy B. Jackson is scheduled to consider the injunction at 10 a.m.

The Justice Department had asked the Supreme Court to vacate the temporary restraining order, but on Feb. 21, 2025, the Court held the order in abeyance until Feb. 26, 2025, when the temporary restraining order was set to expire.

In the Court’s order on Feb. 21, 2025, Justice Neil Gorsuch, joined by Justice Samuel Alito, questioned if the district court had the power to grant equitable relief to Dellinger in the form of a temporary restraining order. “The court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office. Whether labeled a TRO or a preliminary injunction, that order provided an equitable remedy,” wrote Gorsuch.

“Under this Court’s precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation’s founding, it was a remedy ‘traditionally accorded by courts of equity,’” Gorsuch argued, who wanted the district court to vacate the order and consider the equitable relief question.

Justices Sonia Sotomayor and Ketanji Brown Jackson would have denied the request to vacate the temporary restraining order.

On Feb. 16, 2025, acting Solicitor General Sarah M. Harris petitioned the Court to vacate the temporary restraining order. Harris pointed out a 1935 Supreme Court decision, Humphrey’s Executor v. United States, as permitting Dellinger’s firing, since he was the sole head of the agency and Humphrey’s Executor only applied to “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”

Harris also noted a recent letter she had written to Senator Dick Durbin of the Senate Judiciary Committee that questions the constitutionality of Humphrey’s Executor itself. The letter dated Feb. 12, 2025, informed the Senate that the Justice Department had determined that “certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and that the Department will no longer defend their constitutionality.”

It cited the Court’s 1926 decision in Myers v. United States as recognizing “that Article II of the Constitution gives the President an ‘unrestricted’ power of ‘removing executive officers who had been appointed by him by and with the advice and consent of the Senate.” The letter further stated that Humphrey’s Executor, which carved out an exception to Myers for agencies that exercised “quasi-legislative or quasi-judicial powers” should not affect the ability of the president to remove officials from multi-member regulatory commissions such as the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission. It then added:

“To the extent that Humphrey's Executor requires otherwise, 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 who execute the laws on the president's behalf, and which has already been severely eroded by recent Supreme Court decisions,” Harris said in the letter.

Humphrey’s Executor and Recent Decisions

The Supreme Court considered the Humphrey’s Executor case in another era where an incoming president wanted to make a commission member change after an election. Republican Presidents Calvin Coolidge and Herbert Hoover had appointed William E. Humphrey to the Federal Trade Commission. Humphrey was serving a six-year term in 1933 when President Franklin Roosevelt asked Humphrey for his resignation, on the grounds that “that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection.” When Humphrey refused to resign, Roosevelt fired Humphrey, but Humphrey did not acknowledge Roosevelt’s decision and continued to collect his salary. After Humphrey died in 1934, his estate sued for back pay.

In the Court’s unanimous Humphrey’s Executor decision, Justice George Sutherland said the Federal Trade Commission Act’s language provided that its commissioners could only be removed by the president for inefficiency, neglect of duty, or malfeasance in office. The Court cited its prior decision in Myers v. United States , which held that a postmaster could be removed by the chief executive because “an officer is merely one of the units in the executive department.”

Justice Sutherland drew a distinction between the Myers majority decision written by Chief Justice William Howard Taft and the case at hand in Humphrey’s Executor: “When Congress provides for the appointment of officers whose functions, like those of the Federal Trade Commissioners, are of Legislative and judicial quality, rather than executive, and limits the grounds upon which they may be removed from office, the president has no constitutional power to remove them for reasons other than those so specified,” Sutherland noted.

The February 2025 Justice Department letter to the Senate cited a more recent Supreme Court decision, Seila Law LLC v. Consumer Financial Protection Bureau (2020), that it believed questioned the reasoning of the Humphrey’s Executor case.

In the Seila Law case, Seila Law LLC, a law firm that provided debt-related legal services to clients, was under investigation by the CFPB. Seila Law argued that the agency’s structure, consisting of a single director who exercised substantial executive power but who was removable only for cause was unconstitutional because such a structure violated the separation of powers.

Chief Justice John Roberts wrote the 5-4 majority’s decision, agreeing that “the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers.” Roberts considered precedents from Humphrey's Executor and also Morrison v. Olson (1988), a decision about for-cause removal protections for inferior officers.

The Chief Justice believed the structure of the modern CFPB bore little resemblance to the New Deal era-created Federal Trade Commission, and the Seila case presented a “new situation,” where Humphrey's Executor could not be extended “to an independent agency led by a single Director and vested with significant executive power.”

“While recognizing an exception for multimember bodies with ‘quasi-judicial’ or ‘quasi-legislative’ functions, Humphrey’s Executor reaffirmed the core holding of Myers that the president has ‘unrestrictable power . . . to remove purely executive officers,’” Roberts said.

In their Feb. 18 response to the government’s application to the Supreme Court to vacate the district court order, Dellinger’s attorneys argued that the Court should consider Humphrey’s Executor among several factors supporting the temporary restraining order to remain in place. “The Court recognized in Humphrey’s Executor that Congress could shield agency heads from removal without cause where Congress deemed such protections necessary to secure a modest measure of impartiality, expertise, and independence. As the Court is aware, that ruling continues to form the basis for an important part of the modern federal government.”

Scott Bomboy is the editor in chief of the National Constitution Center.