WHO IS RUNNING THE COUNTRY? TRUMP FIRES EVERYONE!

We who are obsessed with the news cannot help but notice the battle between the Trump administration, the Courts, and those who rely on taxpayer funds for their jobs.

In this upending of the administrative swamp, we see Trump firing numerous “independent” board members and commissioners who having been appointed to tenured governmental positions believe that they are entitled to remain in those positions, get paid and direct whatever policy they deem appropriate without supervision or interference.

As with most things political, and in life, there is more to this controversy than meets the eye. As to how we got here, well…in my humble opinion, in the first Trump term, he thought that since he was the President, he got to decide how the executive branch would execute the laws of the United States. He was wrong. He chose a number of officials to accomplish his vision, only to find out that when he made a decision or gave a directive to the bureaucracy, nothing happened. His opponents championed executive branch subordinates who would “put a break on Trump’s excesses” or actually if truth be known to keep him from doing anything at all. As a businessman, Trump was used to telling employees what to do and how to do it, and if they refused, he would just get someone else. He couldn’t understand how the people that worked for him in the Executive Branch didn’t do what he directed.

This frustrated him throughout his chaotic first term which was dominated by Russia, Russia, Russia investigations and impeachments. However, it became particularly apparent at the end of his term in January 2021 when, despite successfully beating back the Mueller investigation and one impeachment, he was faced with continued allegations of Russian collusion. As a result, he decided to dump all the materials that the intelligence community was holding back and let the people decide. He declassified a broad swath of intelligence relating to the 2016 election and the CIA’s assessment of Russian interference and Russia’s purported support for then candidate Trump, and in January 2021, he ordered CIA Director, Gina Haspel, to release the documents. She didn’t do it. She ran out the clock, and on January 20^th, Biden was inaugurated. Trump went off to Mir-a-Lago, and the documents were never disclosed to the American people.

This ordinarily would have ended the matter for history, but Trump refused to go away. He ran for and was reelected President and came back with a vengeance and a realization that just because he was the President of the United States, the boss, the main man, that didn’t mean that those who currently worked in the Executive Branch would do what they were told.

So…Trump 47 and his allies blew into town on January 20^th, 2025, and started firing or laying off all kinds of people who he believed would frustrate his policies. Included in this group were executive officials from purportedly “independent” agencies. Many took the position that if the President didn’t want them to continue, they weren’t going to force themselves on him, but for others, lawsuits were filed alleging that he could not fire these “independent” officials before the end of their stated terms.

Other than common sense that someone always works for someone, Trump relied on the Constitution that our founders created directing that there were only three coequal branches of government, the Legislative Branch, which makes the laws, the Judicial Branch which is to interpret the laws, and the Executive Branch which is to execute the laws which the legislature makes and the judiciary interprets in case of a dispute.

This went with the thinking that was around at the time of the crafting of the Constitution, that the Executive Power rested with the President who must “take care that the laws be faithfully executed”. Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. While the Senate has Advice and Consent power under the Constitution for hiring or appointing Executive officials, it has no role concerning when these officials would be terminated.

Of course, this naturally leads us to 1935 and Humphrey’s Executor. Well, maybe not all of us will naturally drift to this case… but for those who thought there were three separate branches of Government where the bureaucracy of the Executive Branch would be, of course, under the control and direction of the Executive, we were told, “now just wait a minute buddy.”

To set the background of how something that didn’t seem to matter much at the time can bite you in the rear, say 90 years later, let me divert your attention to the sad tale that actually has its roots in the Woodrow Wilson administration. Wilson was a political science college professor and President of Princeton University. He is the only person from the faculty lounge to ascend to the Presidency. He thought that the Constitution was no longer applicable and needed to be modernized. He believed that the people, particularly Negros, women, the uneducated and the poor, were not capable of governing themselves, much less others, and advocated that government should be run by neutral administrative experts with specialized knowledge beyond the experience of ordinary Americans and that these experts should not be unduly constrained by ordinary notions of democratic rule or constitutional constraints. Others in the progressive era agreed with him and thus was created the concept of the “administrative expert”: neutral, independent not answerable to anyone except for “malfeasance.” In that vein, one of the agencies that Wilson created was the Federal Trade Commission and its Commissioners, to among other things, regulate “unfair” trade practices.

When Franklin Roosevelt was overwhelmingly elected to the Presidency, he thought that the FTC needed to be reformed to carry out his policies. In particular, Roosevelt wanted FTC Commissioner, William Humphrey, out of the position believing that Humphrey’s version of “unfair” trade practices was different than Roosevelt’s. He felt that Humphrey was too friendly to business interests. Rather than being an apolitical expert in the field of fair trade, Humphrey, appointed by Calvin Coolidge, had been a Republican hack who had served in Congress and then had been a D.C. lobbyist for a number of years. Is this starting to sound familiar in the modern era?

In the summer of 1933, Franklin wrote a nice letter to Humphrey asking for his resignation. Humphrey refused to go. Not receiving a resignation, Roosevelt then wrote a less polite “brisk note” informing Humphrey, “you are removed.” By law, Humphrey could only be removed for inefficiency, neglect of duty or malfeasance in office and the President’s letter had accused him of none of these. Humphrey objected and continued to attend FTC meetings and filed demands for his now unpaid salary. The controversy lived on even though Humphrey had the misfortune of dying of a stroke some five months later in 1934. His Executor took his case to the Supreme Court to get Williams’ five months back pay from the time of his dismissal until the time of his death, some $4167. I wonder how much his widow got out of that after legal fees all the way to the Supreme Court!

The case came to the Court in 1935 during which time it had been fighting with Roosevelt having declared a number of Roosevelt’s initiatives unconstitutional. Nevertheless, it appeared it was going to be a slam dunk for Roosevelt because a mere 10 years before in Myers v. United States (1926), Chief Justice and former President, William Howard Taft, had ruled that a President cannot “discharge his constitutional duty of seeing that the laws be faithfully executed unless he maintained the power to remove those under him in the Executive Branch.”

However, the Supreme Court in Humphrey’s Executor ended up taking a different view ruling that the FTC operated as a administrative body to enforce Congress’s Federal Trade Act “in part quasi-judicially” and “in part quasi-legislatively” (whatever that meant). It determined that the FTC was not part of the Executive Branch harkening back to Wilson’s philosophy that the government should run not by a bureaucracy that was under the control of the President who is answerable to the electorate, but by a separate “trained body of experts” who must be free of the “coercive influence” of the elected President and therefore the people.

Unanswered was how the Court got around the Constitutional provision that only the President was given the task to execute the laws passed by Congress, not some independent agency and to what branch of government did this agency now belong. Was there now an extraconstitutional 4^th branch of government answerable to no one?

In the meantime, Roosevelt, while not liking the decision in Humphrey’s Executor and having to pony up $4167 in back pay, did get to appoint Humphrey’s replacement since he was deceased, getting his way in the end. Despite losing the Humphrey’s Executor case, Roosevelt was more aligned with Wilson than with Chief Justice Taft believing that government was the answer to solving the nation’s problems by independent experts who were appointed by Roosevelt and not answerable to the unruly American public. Other Presidents created their own boards and commissions, like the Nuclear Regulatory Commission (NRC), the Federal Energy Regulatory Commission (FERC), the Federal Communication Commission (FCC) to name a few and few rocked the boat. Sometimes as a matter of courtesy and practice, governmental officials resigned with the inauguration of a new President. Of course, there were other instances of forced removal such as in 2021 when Biden fired all of the members of the Service Academy’s Boards of Trustees for the sin of having been appointed by Trump. Not to fear, Trump retaliated and fired all of Biden’s nominees when he returned to the White House. These actions didn’t result in litigation.

It wasn’t all smooth sailing, however, as a few cases did make their way to the Supreme Court which tied itself into legal pretzels to uphold the President’s authority to fire those in his administration. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010), firing the members of the Public Company Accounting Oversight Board, and in Seila Law LLC v. Consumer Products Safety Bureau, (2020), where it was ruled that the Director of the Consumer Financial Protection Bureau could be removed by the President despite restrictions for her removal limited to inefficiency, neglect, or malfeasance, the same restrictions that were at the heart of Humphrey’s Executor.

This brings us back to the present, when on January 20^th, Donald Trump with guns blazing, metaphorically, came to town. Trump who has the reputation as perhaps the most disruptive influence to the status quo since FDR returned to the Presidency with a mission that was frustrated by the bureaucracy in his first term. The Trump administration has no “go along, get along” policy nor deference to current practices because “we have always done it that way”. Also having experienced the failure of “experts” during the COVID pandemic, he is not particularly enamored with the delegation of Presidential authority to a group of “experts” hired by Joe Biden.

So, Trump took out his axe and began hacking away at the bureaucracy. It has been alleged that he has simply wanted to put “loyalists” in governmental positions revealing himself to be an authoritarian dictator, but I think the more accurate analysis is he just wanted the people who work for him to do what he directs as head of the Executive Branch of Government as opposed to those in the Wilsonian “Fourth Branch of Government.”

Trump fired in rapid succession Hampton Dellinger, the head of the Office of Special Council, Gwynn Wilcox, a member of the National Labor Relations Board and Cathy Harris, Chair of the Merit Systems Protection Board, all before the end of their congressionally sanctioned terms. District Court Judges entered injunctions to prevent their removal and ordered their reinstatement, but last week the Supreme Court while not deciding the ultimate issue of a President’s ability to fire members of independent Boards and Commissions without cause, removed the injunctions allowing their terminations to stand pending the resolution of their lawsuits.

With all of the excitement and chaos of DOGE, the Ukrainian war, tariffs and trying to bury Harvard, something is going on here that, I would suggest, we should pay attention to. The resolution of this case could well bring an end to the 100 year practice of Commissioners, Board Members and experts answerable to no one in the political sphere. While some may agree that it’s a good idea that there should be unaccountable administrative bodies exercising governmental power as Wilson had advocated, somebody is going to have to change our fundamental principle of the separation of powers among our three branches of government laid out in the Constitution.

Who is running this show? We will soon find out. In the meantime, hold on!