DOJ to Ask Supreme Court to Overturn 80-Year Precedent

The Federal Trade Commission (FTC) in Washington on Aug. 6, 2024. Madalina Vasiliu/The Epoch Times

The president can directly terminate officers at the National Labor Relations Board and three other agencies, provided the U.S. Supreme Court overturns its 80-year precedent, according to a new U.S. Department of Justice (DOJ) position.

The DOJ said in a Feb. 12 letter to Sen. Dick Durbin (D-Ill.) that it has determined that the for-cause provisions for members at the National Labor Relations Board, the Consumer Product Safety Commission, and the Federal Trade Commission violate the U.S. Constitution.

The Supreme Court ruled in 1926 that the president has unrestricted power under the Constitution to remove executive officers appointed by him and confirmed by the U.S. Senate. But about a decade later, justices said that Congress may forbid the removal of members of the Federal Trade Commission unless there is just cause.

That protection was later extended to members of other independent agencies.

“The Department has concluded that those tenure protections are unconstitutional,” Acting Solicitor General Sarah M. Harris told Durbin in the new letter.

The exception outlined in the 1935 ruling in Humphrey’s Executor v. United States “does not fit the principal officers who head the regulatory commissions noted above,” she said.

The DOJ intends to call on the Supreme Court to overrule its ruling because it “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 eroded by recent Supreme Court decisions,” Harris added later.

She pointed to the justices ruling in 2010 in a case known as Free Enterprise Fund that the limits Congress put on presidents removing members of the Public Company Accounting Oversight Board were unconstitutional.

Members of the board could only be removed by the Securities and Exchange Commission (SEC), which appointed the members, and only for “good cause.” SEC commissioners, meanwhile, were also under the Humphrey’s Executor protection.

“We hold that such multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President,” Justice John Roberts wrote at the time.

It’s not clear when the DOJ will ask the Supreme Court to act. The Office of the Solicitor General did not return an inquiry.

The National Labor Relations Board declined to comment. The Consumer Product Safety Commission and the Federal Trade Commission did not respond to requests for comment.

Durbin, the top Democrat on the Senate Judiciary Committee, wrote in a post on social media platform X that the new position meant the DOJ “is no longer defending duly-enacted laws that protect consumers and workers.”