The US Department of Justice (DOJ) recently announced a shift in its stance on the independence of several key regulatory commissions. In a letter from Acting Solicitor General Sarah M. Harris to Senator Dick Durbin, the DOJ declared it would cease defending the statutory tenure protections of the Federal Trade Commission (FTC), the National Labor Relations Board (NLRB), and the Consumer Product Safety Commission (CPSC). This decision underscores the interpretation that the US president has the authority to remove executive officers without cause, based on Article II of the Constitution.
Historically, these agencies were fortified by statutory protections that ensured their independence from political influences. Removal from office was typically restricted to causes like neglect of duty or malfeasance. This framework was upheld by a landmark 1935 Supreme Court ruling in Humphrey’s Executor v. United States, which articulated limits on the president’s removal power concerning bodies performing quasi-legislative and judicial functions created by Congress. However, the present DOJ’s move to urge the Supreme Court to overturn Humphrey’s Executor represents a pivotal shift in regulatory governance.
This announcement coincides with significant regulatory changes under the Trump administration, evident from actions like the attempt to lift orders affecting the treasury systems and the halt of civil rights litigation. Further, rejected attempts by the federal appeals court to resume a spending freeze, coupled with recent DOJ personnel changes related to prosecutions, highlight ongoing disruptions in federal agencies.
The ramifications of this revised perspective on regulatory body independence may be substantial, influencing not just legal frameworks but also the broader regulatory landscape. Legal professionals and stakeholders are closely monitoring the developments for potential implications on regulatory operations and governance.
For further details, see JURIST.