Project 2025 called out a 1935 Supreme Court precedent protecting federal agencies’ independence. Now, the Trump administration says it’s prepared to ask the Supreme Court to overturn it.
In a letter dated Wednesday, the Justice Department’s acting solicitor general, Sarah Harris, said the DOJ is ready to ask the justices to ditch the case, called Humphrey’s Executor. The 1935 ruling has long upheld agency independence at a time when Donald Trump is attempting to amass power in a White House now under Republican control.
Harris, a former Clarence Thomas clerk, wrote the letter to Senate Judiciary Committee ranking member Dick Durbin, D-Ill., citing a federal law requiring the administration to tell Congress when it decides not to defend what it deems unconstitutional practices.
Specifically, Harris wrote that the DOJ will no longer defend statutory tenure protections for members of the Federal Trade Commission, National Labor Relations Board and Consumer Product Safety Commission. She noted that protections for members of those agencies relied on Humphrey’s Executor, but said the DOJ now thinks those protections are unconstitutional. To the extent that that precedent stands in the way of the government’s new stance, she wrote, the department will ask the justices to overturn it.
There are multiple pending cases raising the issue in the lower courts, stemming from Trump’s early executive actions.
To be sure, the letter from Harris isn’t a Supreme Court brief. It remains to be seen exactly how or when such a challenge to the 90-year-old precedent will be presented to the high court. But there are multiple pending cases raising the issue in the lower courts, stemming from Trump’s early executive actions that have included the firings of apparently protected workers.
For example, NLRB member Gwynne Wilcox’s legal complaint filed earlier this month cited Humphrey’s Executor while noting that “Congress has relied on that precedent for ninety years in structuring independent agencies, and abandoning it now could cast a cloud over a wide variety of agency decision-making.” Likewise, the case is cited in the pending lawsuit over Trump’s attempt to fire Hampton Dellinger from the Office of Special Counsel (a different thing from what Jack Smith was). Dellinger’s lawyers observed that the ruling “forms the basis for a substantial part of the modern federal government.” Whether the precedent’s future is eventually presented to the justices in these cases or any others, the Trump administration has made clear where it stands when the time comes. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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