Trump wants the case overruled. Democratic-appointed judges keep applying it, but the Supreme Court has signaled the end is near.

Humphrey’s Executor, a New Deal era Supreme Court precedent that is foundational to the modern administrative state and that the Trump administration hopes to convince the Court to overrule, continues inching toward the crypt.

On Monday, Chief Justice John G. Roberts, Jr., issued an administrative stay against a lower court ruling that had allowed Rebecca Slaughter to continue in her position as a member of the Federal Trade Commission (FTC) despite President Trump’s firing of her.

Slaughter was appointed by President Biden. The administration maintains that because FTC commissioners wield executive power, the Constitution empowers the president to remove them at will (and replace them with the president’s own pick, pending Senate confirmation). But in creating the FTC and other so-called independent agencies, Congress enacted statutes providing that the agency heads may only be removed for cause (generally meaning misfeasance or malfeasance in office — although, as we’ve recently noted, the Federal Reserve statute does not define cause, contrary to the FTC statute).

The administrative agencies are described in law as “independent” because they are not formally part of any individual branch of government, and they exercise the powers of multiple branches — executive, legislative, and judicial. This adheres to the progressive model of governance, which holds that many government tasks can be trusted to selfless bureaucratic experts who will act in the public interest, not based on partisanship, and should therefore be shielded from politics — i.e., from political accountability. This defies the Constitution’s separation of powers principle, under which every government entity must be part of a branch of government, accountable to elected officials who answer to the voters whose lives are affected by governmental decisions. (I’d add that the suggestion that federal bureaucratic chiefs are non-partisan strains credulity.)

In Humphrey’s Executor v. United States, the Supreme Court prevented President Franklin D. Roosevelt from firing William Humphrey, an FTC commissioner. The unanimous decision was handed down in 1935, a fraught period when FDR was beginning his controversial effort to pack the Court. The justices departed from what was then a fairly recent precedent (Myers v. United States (1926)), which held that presidents have constitutional authority to fire at will agency heads who wield executive power.

The modern Supreme Court has cut back substantially on Humprhey’s, and some conservative justices have called for it to be overruled (something I previously explained here.) The Trump administration has advocated that outcome, with the president ordering the removal of several agency heads who ostensibly have for-cause removal protection. Seeking not to roil the markets, the Trump Justice Department has not pressed for presidential at-will removal power for members of the Federal Reserve Board — Trump’s ongoing effort to fire Fed governor Lisa Cook is alleged to be for cause.

As I detailed in May, the Court has signaled sympathy for both Trump’s constitutional argument that he should be able to remove agency heads at will, and the Justice Department’s suggestion that the Fed’s unique structure and history make it a different from other administrative agencies — such that gutting or outright overruling Humphrey’s would not necessarily empower Trump to fire members of the Fed’s board.

In yesterday’s one-page order, Chief Justice Roberts ordered that the lower court ruling by Judge Loren AliKhan, a Biden appointee to the Washington, D.C., federal district court, be put on a brief hold — meaning Commissioner Slaughter is out of her job until further notice. Such administrative stays are short pauses to allow a court to get a grip on the facts and law of the case before deciding whether to issue a temporary restraining order (TRO) suspending the lower court decision while the case proceeds. Roberts gave Slaughter a week to respond to the administration’s TRO application

The administration’s application was made to Roberts because he is the circuit justice for emergency applications that arise in the D.C. Circuit. After Judge AliKhan ordered Slaughter reinstated, a divided three-judge D.C. Circuit panel last week declined to stay that order pending appeal — with two Obama-appointed judges siding with Slaughter while a Trump-appointed judge siding with Trump.

Now that Roberts has issued an administrative stay, the normal procedure would be for him to refer the matter to the full Supreme Court (all nine justices). To be clear, at issue would be, not the ultimate merits of the case, but whether Slaughter should be removed, pursuant to Trump’s directive, while the merits case proceeds. But of course, if a Court majority allows the removal to be in effect while the case proceeds (as I believe it will), that would mean the justices believe Trump is likely to prevail on the merits.

So, while lower court judges appointed by Democratic presidents continue applying Humphrey’s Executor as precedent that binds them, the Supreme Court persists in no longer regarding it as such, even though the case has not formally been overruled.