Back in November, I attended the annual convention of the Federalist Society in Washington. If you should want to understand the constitutional law issues confronting this country after a century of corruption of our institutions by the progressive movement, I would highly recommend that you start attending these annual events as well. Last November’s convention took place on the 14th to 16th of the month — in other words, just over a week after Donald Trump had been elected to serve another term as President.

One of the panels that I attended on November 15th had the title “What Is the Future of Administrative Law?” I’ve provided a link there where you can actually watch the panel if you have the time and inclination. There was a great group of presenters that included the likes of Paul Clement (pre-eminent Supreme Court advocate), Judge Naomi Rao (of the DC Circuit Court of Appeals), and perhaps most notably, Professor Philip Hamburger of Columbia Law School (author of the book “Is Administrative Law Unlawful?” — probably the most important constitutional law book of this century so far).

During the audience question part of the program, someone asked, what do you see as the next big issues that will be decided by the Supreme Court? One of the panelists (I think it was Hamburger) answered, “ I think Humphrey’s Executor will be reconsidered.” The other panelists then all agreed.

OK, unless you are a specialist in this area, that probably doesn’t mean much to you. But in fact it is a big deal. And the “Humphrey’s Executor” question has suddenly come front and center in the past couple of days with the latest actions taken by President Trump.

First, some background. Humphrey’s Executor is the key Supreme Court case addressing the following question: Can the President fire anybody and everybody in the federal bureaucracy whom he wants to fire, effective immediately, no questions asked? This is a rather important question. During his first term, Trump faced constant resistance to his policies from the people who supposedly worked for him. Indeed, they rallied under a hashtag #Resistance, like it was a badge of honor. Meanwhile, the Constitution (Article II, Section 1) states in seemingly unambiguous terms that “The Executive Power” is “vested” in the “President.” So can’t the President just fire people who won’t do his bidding? After all, he was elected, and they weren’t, and the voters should be entitled to get the policies they voted for. Shouldn’t they?

But of course, over the years, there have grown up all kinds of statutory restrictions on the ability of the President to fire people. Some of these restrictions apply to lower-level employees (the “civil service”), and others to relatively high level people like Commissioners of “independent” agencies, Inspectors General, and so forth. Given that the Constitution vests all of the “Executive Power” in the President, aren’t such restrictions on his power unconstitutional?

This is where Humphrey’s Executor comes into the mix. The facts of the case arose in 1933 — early in Franklin Roosevelt’s first term as President — and the case was decided by the Supreme Court in 1935. Humphrey was a Commissioner of the FTC, appointed by prior President Herbert Hoover to a seven-year term, that would then continue throughout Roosevelt’s first administration. Roosevelt wanted to get rid of Humphrey, but the FTC statute at the time provided (as it still provides today) that Commissioners could only be removed for “inefficiency, neglect off duty, or malfeasance in office.” So Roosevelt just ignored the statutory restriction and fired the guy. Humphrey sued. (He died while the case was pending, and the case for his pay was then continued by his executor, which is why the case goes by the name of Humphrey’s Executor.)

The Supreme Court held, in one of its most bizarre opinions ever, that Humphrey was improperly fired and that his estate was entitled to its back pay. I wrote a post about this bizarre case back in December 2016. The Court’s logic turns on the idea that the power of an FTC Commissioner is not “executive” in nature, even though the Commissioners have the authority to execute and enforce the laws. The opinion makes no sense whatsoever. However, it has never been overruled, and stands today as Supreme Court precedent. I’ll be surprised if even the crazy liberals on today’s Supreme Court are ready to uphold this case.

When I wrote the December 2016 post, it was right after Trump had been elected to his first term, with his promise at the time to “drain the swamp.” I fully expected Trump to challenge Humphrey’s Executor at his first opportunity, but for some reason he did not. Instead, he suffered for four years with a bureaucracy seeking to undermine him at every turn.

This time it appears he has learned some lessons the hard way. The New York Times has a piece on January 29, with the headline “Defying Legal Limits, Trump Firings Set Up Tests That Could Expand His Power.” The sub-headline is “The prospect of legal challenges to President Trump’s purges may be a feature, not a bug, for adherents of sweeping presidential authority.”

The news reported in the article is that among the people that Trump has just fired are several groups theoretically subject to one or another of these statutory protections against at-will, without-cause firing. These groups include Commissioners of “independent” boards and agencies (who have protections comparable to those of Humphrey), plus Inspectors General, and career prosecutors. From the Times:

President Trump abruptly fired dozens of officials in the past few days — including inspectors general, a member of the National Labor Relations Board and career prosecutors — in ways that apparently violated federal laws, setting up the possibility of lawsuits.

The Times spins Trump’s actions as some kind of naked power grab, while somehow never mentioning that the President’s actions are based in the simple words of the Constitution:

The early days of Mr. Trump’s return to office show that he has reveled in a maximalist show of force, and his firings have come in the teeth of various federal laws. For example, when Mr. Trump conducted a mass purge of more than a dozen inspectors general on Friday, he defied a statute that requires giving a written notice to Congress with a “substantive rationale, including detailed and case-specific reasons” at least 30 days in advance.

The Times also uses the occasion to pre-bash the conservative Supreme Court justices who it suspects will uphold Trump’s actions:

Five of the nine Supreme Court justices worked as executive branch lawyers during the Reagan and George W. Bush administrations. Their legal teams were both defined by an expansive view of executive power, including developing theories of the Constitution that would invalidate congressional restrictions on the White House.

One thing that the Times piece does not mention is the Humphrey’s Executor case, which is the thin reed of support on which rests all of the statutory restrictions on at-will firing by the President. After all, if they mentioned the case, they might be forced to discuss its reasoning, or rather its lack of any coherent reasoning.

I agree with Professor Hamburger that Humphrey’s Executor is extremely likely to fall when it reaches the Supreme Court. I’ll even go out on a limb and say that I expect the decision to be unanimous — I can’t even think of how the liberals might try to support its ridiculous logic. Unfortunately, however, since Humphrey’s Executor remains even today as Supreme Court precedent, it is likely that lower courts will (properly) rule against Trump on at least some of these firings. That’s why his moves to seek buy-outs and to place many on paid administrative leave make sense. Once Humphrey’s Executor gets the ax — hopefully well before the end of the term — Trump (and all future presidents) will have much more flexibility.