Starbucks employees urge Supreme Court action on presidential control over agency officers

Currently, a similar argument is central to a dispute involving FTC member Rebecca Slaughter, a Biden appointee who has sued for reinstatement after her dismissal. The Supreme Court is considering whether such restrictions on presidential removal authority are permissible as it reviews Trump v. Slaughter.

The amicus brief argues that when considering this case about the FTC, the Court should also recognize that other independent agencies exercising executive power—such as the NLRB—must be subject to presidential oversight and removal authority.

Trump v. Slaughter offers an opportunity for the Supreme Court to reconsider its 1935 decision in Humphrey’s Executor v. United States, which allowed exceptions for certain agencies regarding presidential removal under Article II of the Constitution if they exercised quasi-judicial or quasi-legislative power rather than executive power.

However, according to arguments made by Foundation attorneys in their filing: “The NLRB fails the Humphrey’s Executor test.” They write: “The NLRB is a policymaking body that enforces the [National Labor Relations Act] based on its legal conclusions, not scientific or technical judgments…[T]he Board does not exercise quasi-legislative or quasi-judicial authority. It exercises executive power in everything it does.”

The brief further asserts: “Humphrey’s cannot neuter the President’s ability to supervise those who exercise substantial parts of [executive] power.” It urges that “the Supreme Court should make clear that the President’s removal power applies to every agency that exercises executive power, including the NLRB.”

Cortes and Karam are seeking to remove local union leaders from their workplaces but claim their efforts have been obstructed by policies enforced by what they describe as a pro-labor NLRB under President Biden. A favorable ruling could help ensure fair consideration of their cases before federal labor authorities.

“Unaccountable and biased NLRB bureaucrats have caused direct harm to independent-minded workers and their individual rights, and the Supreme Court should rightfully restore the proper separation of powers, including at the NLRB,” said Mark Mix, president of National Right to Work Foundation. “We are proud that the very legal arguments made by Foundation attorneys are now being utilized by this administration to dismantle the unaccountable fourth branch of government and restore proper constitutional structure.”