WASHINGTON, D.C. (FEDweek) — In a ruling that could have wide implications for the legal protections of federal employees, the U.S. Supreme Court has held that the heads of agencies such as those that oversee those rights are subject to being fired by the president at-will.
The court split 6-3 along ideological lines in a case involving the firing early in the Trump administration of two Democratic members of the FTC; the central question was whether heads of agencies that have semi-judicial roles can be removed only for “good cause.” Overturning a precedent that they have such protection, the court majority said the FTC “enforces and administers” a range of laws, has power to issue roles and performs other functions of the sort that the Constitution envisions as under direct control of the president.
“Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people,” the majority said in an opinion by Chief Justice John Roberts and joined by the court’s other conservative justices.
In dissent, Justice Sonia Sotomayor said the decision “risks the end of the employment protections that apply to members of the civil service” by extending the same logic to agencies overseeing those protections.
The dissent said the decision “undercuts one side of the balance that the political branches struck” when creating a level of independence for such agencies. “Put simply, today the majority reshapes our Government. Dozens of independent commissions are now likely to become purely executive agencies, shifting tremendous power over broad swaths of American life into the President’s hands,” she said, naming the MSPB as among them.
Federal employee legal protections traditionally have operated largely independent of White House control, beyond the president’s role in making nominations for Senate confirmation. The MSPB, FLRA, EEOC boards have requirements that the governing boards have some political balance, while heads of the Office of Special Counsel and Office of Government Ethics have five-year terms, designed to carry into the following administration. Along with the FTC members at issue, early in the current Trump administration the White House fired the Democratic board members of the first three of those agencies, along with the heads of the OSC and OGE, who had been confirmed during the Biden administration.
That resulted in several lawsuits, including one still being pursued by the fired MSPB member asking the high court to reverse her removal on grounds that law allows firings from such positions only for “inefficiency, neglect of duty, or malfeasance in office” and that the White House cited no such justification. The court could now refuse to hear that case in light of its new ruling.
“By holding that officials who exercise executive power are subject to at-will presidential removal, the decision substantially undermines the constitutional rationale that previously supported removal protections for officials serving on independent agencies,” noted Allen Shoikhetbrod, a Managing Partner at Tully Rinckey PLLC.
“The decision may affect not only the FTC but also other agencies with similar removal protections, including the NLRB, SEC, and potentially the MSPB. However, the Court did not address all agencies or all categories of officials. It expressly reserved judgment on the constitutionality of removal protections for officials who perform adjudicatory functions of ‘non-Article III courts,’ such as the Tax Court and the Court of Federal Claims. Rather, the opinion makes clear that those who fall within the President’s ‘general administrative control’ must be removable by the President, at-will,” he explained.
The ruling also could undercut another major pending challenge to erosion of employee protections, in which two immigration judges are challenging the MSPB’s decision that they exercise management powers of the sort that makes them “inferior officers” subject to at-will removal. That case is seen as potentially setting precedent for other occupations to be tagged with that designation, with employees losing their civil service appeal rights.
