In an unusual order issued last Thursday, the Supreme Court signaled that it is poised to pare back significantly, if not outright reverse, its 1935 decision in Humphrey’s Executor v. United States, as President Trump is urging it to do. Humphrey’s approved administrative agencies deemed “independent” of presidential control even though they exercise some executive powers — independence that includes “for good cause” restrictions on a president’s authority to fire the bureaucrats who run such agencies. The Court’s most formidable supporter of the administrative state, Justice Elena Kagan, countered Thursday’s order with a spirited dissent. The next day, Judge Beryl Howell, the president’s longtime nemesis on the federal district court in Washington, D.C., was emphatic that this 90-year-old plinth of progressive governance is not dead yet.
An Unusual Emergency Order
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