Will the President of the United States this week or next fire one or both of the Surface Transportation Board’s (STB) two Democratic members? Will Democrats Karen J. Hedlund and Robert E. Primus face the same “you’re fired” chant from POTUS 47 as did the Federal Trade Commission’s (FTC) two Democrats—Alvaro Bedoya and Rebecca Slaughter—earlier this week?
According to the enabling statutes of both agencies, and a prior Supreme Court ruling, such firings are limited to evidence of inefficiency, neglect of duty or malfeasance while in office—of which none has been presented of the two sacked FTC members. But this is a President who repeatedly since his Jan. 20 inauguration has treated the Rule of Law as a mere suggestion.
Even if Bedoya and Slaughter are returned to office by federal courts, the process is not immediate. While the five-member FTC now has a 3-0 Republican majority, with no bipartisan oversight, the similarly five-member STB, shy one Republican, is deadlocked at two Democrats (Hedlund and Primus) and two Republicans (Chairperson Patrick J. Fuchs and Michelle A. Schultz).
With no Republican STB nominee yet named, and the vetting and Senate confirmation process typically stretching several months after there is a nominee, the firing of Hedlund and/or Primus would create an immediate Republican 2-1 or 2-0 majority—the latter depriving the STB of bipartisan oversight.
History teaches that arbitrary Presidential assaults on congressionally created independent regulatory agencies were put to bed 90 years ago when the Supreme Court ruled (Humphrey’s Executor) that President Franklin D. Roosevelt had no authority, absent evidence-presented cause, to fire a member of an independent regulatory agency—coincidentally, the FTC.
But here’s the rub. Even were a challenge to the FTC—and potential STB—firings be overturned judicially, as so many of the current President’s Executive Orders already are being reversed, the appellate process is not always swift.
More worrisome, this President has already raised fears of an unchartered Constitutional crisis—the ignoring of judicial rulings—through verbal attacks on judges with whom he disagrees. Plus, members of his Administration and Republican members of Congress are advocating impeachment of judges whose rulings the POTUS dislikes. This is so unlike America. To better understand, let’s revisit history.
Shortly after his 1933 inauguration, President Roosevelt sought to oust FTC member and Republican William E. Humphrey, whom Roosevelt considered an impediment to his New Deal policies. When Humphrey refused to resign, Roosevelt ordered him removed from office. When the legal challenge reached the Supreme Court—two years later (with Humphrey then deceased)—the Court ruled that permitting such removal from a federal agency with decision-making independence would subvert “congressional intent to create a body … independent of executive authority.” Will POTUS 47 be similarly repulsed?
The Humphrey’s Executor precedent is under attack by conservative groups such as the New Civil Liberties Alliance and Washington Legal Foundation, which argue that Article II of the Constitution vests the executive power of the government—including over independent regulatory agencies—entirely with the President. Given a Supreme Court conservative majority that previously has indulged POTUS 47, the FTC and potential STB firings carry a “caution: stay tuned” label.
Railway Age Capitol Hill Contributing Editor Frank N. Wilner has a lengthy discussion of regulatory agency independence in his book, “Railroads & Economic Regulation,” available from Simmons-Boardman Books at https://www.railwayeducationalbureau.com, 800-228-9670.
