Dive Brief:
- The U.S. Department of Justice will no longer defend the independence of regulatory commissions, including the National Labor Relations Board, the U.S. Federal Trade Commission and the Consumer Product Safety Commission, according to a letter sent Feb. 12 by Acting Solicitor General Sarah Harris to Senator Richard Durbin, D-Ill.
- Historically, DOJ defended against the president removing members of the boards without cause, but Harris’ letter characterizes those legal protections as “unconstitutional.”
- Per Harris’ letter, DOJ appears ready to question a 90-year-old Supreme Court precedent set originally by Humphrey’s Executor v. United States, which reaffirmed Congress’ power to create independent commissions. The letter goes on to say “the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch.” DOJ did not immediately respond to a request for comment.
Dive Insight:
In the letter to Durbin, the ranking Democrat on the Senate Judiciary Committee, Harris specified that “the Department of Justice has determined that certain for-cause removal provisions that apply to members of multi-member regulatory commissions are unconstitutional and the Department will no longer defend their constitutionality.”
The letter comes after President Donald Trump fired a number of Democratic members of agencies like the NLRB and the U.S. Equal Employment Opportunity Commission.
Former NLRB member Gwynne Wilcox filed a lawsuit Feb. 5 against Trump and Board Chair Marvin Kaplan, alleging that her firing was a “blatant violation of the National Labor Relations Act,” which states board members can only be removed by the president for “neglect of duty or malfeasance in office, but for no other cause.”
Likewise, former EEOC Commission Chair and Commissioner Charlotte Burrows will be represented by Katz Banks Kumin over Trump’s dismissal of her from the EEOC.
“Removing Commissioner Burrows from her position, a full three and a half years before the expiration of her term at the EEOC, is just the latest political attack we have seen from President Donald Trump in his coordinated effort to strip-mine the federal government,” attorney Lisa Banks said at the time.
