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Yahoo
23-05-2025
- Politics
- Yahoo
The Executive Power Case That Unites Donald Trump and Franklin Roosevelt
The U.S. Supreme Court has just taken a major step toward endorsing a broad view of executive power that was first championed by former President Franklin D. Roosevelt and is now championed by President Donald Trump. In an unsigned order issued Thursday in Trump v. Wilcox, the Supreme Court lifted a lower court order that blocked Trump from removing Gywnne Wilcox from her position as a member of the National Labor Relations Board (NLRB). In so doing, a majority of the Supreme Court not only allowed Trump's firing of the Joe Biden appointee to go into effect; the Court also signaled that the New Deal era precedent which strictly limits the president's power to fire "independent" agency heads such as Wilcox is facing impending legal doom. To understand the importance of Trump v. Wilcox, it is necessary to first understand the importance of Humphrey's Executor v. United States (1935). William Humphrey was a commissioner of the Federal Trade Commission (FTC) appointed in 1925 by President Calvin Coolidge. In 1933, with the New Deal in full swing, FDR demanded Humphrey's resignation. "I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission," Roosevelt wrote to Humphrey, "and frankly, I think it is best for the people of this country that I should have full confidence." In other words, Roosevelt wanted Humphrey gone from the FTC for purely political reasons. FDR desired to replace the conservative Coolidge appointee with a trusted New Dealer of his choosing. So, when Humphrey refused to voluntarily depart, Roosevelt fired him. The resulting lawsuit by Humphrey ultimately landed at the Supreme Court two years later. It would be a resounding win for Humphrey. The only downside for the fired commissioner was that he did not live to see it, having died of a stroke one year earlier. However, as the legal historian William E. Leuchtenburg has explained, "the executor of his estate, Samuel Rathburn, took over as plaintiff seeking to recover that portion of Humphrey's salary payable from the day of his removal to the day of his death. Humphrey had always been a bare-fisted brawler, and his ghost was to prove an even feistier adversary." The 9–0 ruling in Humphrey's Executor was a stinging defeat for FDR. The Court flatly forbade Roosevelt—and every other president—from firing agency heads like Humphrey for purely political reasons. The FTC "cannot in any proper sense be characterized as an arm or an eye of the executive," declared the Court. "We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named." Which brings us back to Trump v. Wilcox. According to the National Labor Relations Act of 1935, the presidentially appointed members of the NLRB "may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." Yet Trump fired Wilcox from the board for what is plainly an "other cause." According to the termination letter sent by Trump, Wilcox's work at the NLRB was not "consistent with the objectives of my administration." Trump fired Wilcox for the same sort of purely political reasons that Roosevelt fired Humphrey. That is why the Supreme Court's order in favor of Trump is so significant. It essentially serves notice that the days of Humphrey's Executor are numbered. By allowing Trump's firing of Wilcox to go into effect while the case plays out in the lower courts, the Supreme Court effectively expanded every president's power over agencies like the NLRB beyond the limits previously set by the Court in 1935. "Because the Constitution vests the executive power in the President," the Court's order in Trump v. Wilcox declared, "he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents." And in "our judgment," the order continued, "the Government is likely to show" that a NLRB board member qualifies as an officer who "exercise[s] considerable executive power." Writing in dissent, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, argued that "our Humphrey's decision remains good law, and it forecloses both the President's firings and the Court's decision to award emergency relief." But as Kagan's dissent also makes clear, a majority of the Court thinks otherwise, meaning that it is now only a matter of time before Humphrey's Executor officially ceases to be good law. Thanks to Trump, Roosevelt's ghost may soon be getting the last laugh over Humphrey's. The post The Executive Power Case That Unites Donald Trump and Franklin Roosevelt appeared first on
Yahoo
01-05-2025
- Politics
- Yahoo
When Presidents Sought a Third (and Fourth) Term
This is an edition of Time-Travel Thursdays, a journey through The Atlantic's archives to contextualize the present. Sign up here. President Donald Trump has been back in the White House for just more than 100 days, and he's already thinking about a third term. For much of American history, the notion would have been laughable. Nearly a century ago, the historian John Bach McMaster surveyed the first 138 years of the presidency and hazarded a prediction in the pages of The Atlantic: 'Should the time come when a president who has twice been elected to office seeks a third election, he will surely meet great opposition, for the no-third-term doctrine is still strong.' Within 13 years, he would be proven wrong. In 1940, Franklin D. Roosevelt coasted to an unprecedented third term, capturing 55 percent of the popular vote and a whopping 85 percent in the Electoral College. As the writer Gerald W. Johnson observed the following year, 27 million voters 'trampled down the thitherto sacred third-term tradition in order to reëlect the chief New Dealer.' Roosevelt was breaking no law at the time he sought a third term. The two-term presidential limit was a mere custom established when George Washington stepped down voluntarily after eight years in office. Two presidents—Ulysses S. Grant in 1880, and FDR's fifth cousin Theodore Roosevelt in 1912—had previously tried (and failed) to return to the White House for third, nonconsecutive terms. Roosevelt's victory was not a surprise, and certainly not to readers of this magazine at the time. Barely a year into FDR's second term, the journalist J. Frederick Essary made a prediction that would hold up much better than McMaster's: 'If Mr. Roosevelt runs a third time,' Essary wrote, 'he will be renominated and reëlected.' But no president would do so again. Roosevelt won a fourth term in 1944, as the nation chose not to replace its commander in chief during the height of World War II. The president's worsening health was unknown to the public, and he died less than three months after his fourth inauguration, in April 1945. His death, and the end of the war soon after, revived a debate over whether to formalize what McMaster called 'the unwritten law of the Republic.' America's founders had considered writing a term limit into the original Constitution as a way to prevent a power-hungry president from becoming too much like a king. After Roosevelt's death in office, and after having just fought a war to defeat dictators in Europe, that argument gained new momentum. In 1951, the states ratified the Twenty-Second Amendment, which says that 'no person shall be elected to the office of the President more than twice.' Such an ironclad prohibition would seem to rule out a third term for President Donald Trump. But that hasn't stopped him or his biggest supporters from musing about the possibility of another run in 2028. 'I'm not joking,' he told NBC News last month. 'There are methods which you could do it.' (As if to prove the point, or to troll his critics, the official retail website of Trump's company is now selling Trump 2028 hats.) When my colleague Ashley Parker asked Trump about a possible third term last week, he said it was 'not something that I'm looking to do.' But he was clearly intrigued by the idea: 'That would be a big shattering, wouldn't it?' To get around the Twenty-Second Amendment, Trump's allies have floated the idea that he could run for vice president on the ticket of, say, J. D. Vance in the next election. If Vance won, he could resign, thereby making Trump president without him having to be 'elected' to the office more than twice. (The Twelfth Amendment, however, seems to cut off that path, because it states that 'no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.') Or Trump could simply run for president and dare the Supreme Court to throw him off the ballot in the middle of an election. Should the Supreme Court blink, the decision of whether two terms of Trump are enough would fall to voters. The president has never been as popular as FDR was during his years in the White House. But if history is a guide, it would be wrong to assume the public would automatically uphold a long-established limit. Just ask Essary: 'It is difficult to believe that the mass of the people care very deeply about the third term in itself,' he wrote in 1937. 'There is nothing in our experience as a nation to prove that they do care; and there is much to indicate how little the average man concerns himself about the matter.' It's a sentiment that, some nine decades later, Trump might be willing to bet on. Article originally published at The Atlantic
Atlantic
01-05-2025
- Politics
- Atlantic
A Third Presidential Term Was Once Unthinkable
This is an edition of Time-Travel Thursdays, a journey through The Atlantic 's archives to contextualize the present. Sign up here. President Donald Trump has been back in the White House for just more than 100 days, and he's already thinking about a third term. For much of American history, the notion would have been laughable. Nearly a century ago, the historian John Bach McMaster surveyed the first 138 years of the presidency and hazarded a prediction in the pages of The Atlantic: 'Should the time come when a president who has twice been elected to office seeks a third election, he will surely meet great opposition, for the no-third-term doctrine is still strong.' Within 13 years, he would be proven wrong. In 1940, Franklin D. Roosevelt coasted to an unprecedented third term, capturing 55 percent of the popular vote and a whopping 85 percent in the Electoral College. As the writer Gerald W. Johnson observed the following year, 27 million voters 'trampled down the thitherto sacred third-term tradition in order to reëlect the chief New Dealer.' Roosevelt was breaking no law at the time he sought a third term. The two-term presidential limit was a mere custom established when George Washington stepped down voluntarily after eight years in office. Two presidents—Ulysses S. Grant in 1880, and FDR's fifth cousin Theodore Roosevelt in 1912—had previously tried (and failed) to return to the White House for third, nonconsecutive terms. Roosevelt's victory was not a surprise, and certainly not to readers of this magazine at the time. Barely a year into FDR's second term, the journalist J. Frederick Essary made a prediction that would hold up much better than McMaster's: 'If Mr. Roosevelt runs a third time,' Essary wrote, 'he will be renominated and reëlected.' But no president would do so again. Roosevelt won a fourth term in 1944, as the nation chose not to replace its commander in chief during the height of World War II. The president's worsening health was unknown to the public, and he died less than three months after his fourth inauguration, in April 1945. His death, and the end of the war soon after, revived a debate over whether to formalize what McMaster called 'the unwritten law of the Republic.' America's founders had considered writing a term limit into the original Constitution as a way to prevent a power-hungry president from becoming too much like a king. After Roosevelt's death in office, and after having just fought a war to defeat dictators in Europe, that argument gained new momentum. In 1951, the states ratified the Twenty-Second Amendment, which says that 'no person shall be elected to the office of the President more than twice.' Such an ironclad prohibition would seem to rule out a third term for President Donald Trump. But that hasn't stopped him or his biggest supporters from musing about the possibility of another run in 2028. 'I'm not joking,' he told NBC News last month. 'There are methods which you could do it.' (As if to prove the point, or to troll his critics, the official retail website of Trump's company is now selling Trump 2028 hats.) When my colleague Ashley Parker asked Trump about a possible third term last week, he said it was 'not something that I'm looking to do.' But he was clearly intrigued by the idea: 'That would be a big shattering, wouldn't it?' To get around the Twenty-Second Amendment, Trump's allies have floated the idea that he could run for vice president on the ticket of, say, J. D. Vance in the next election. If Vance won, he could resign, thereby making Trump president without him having to be 'elected' to the office more than twice. (The Twelfth Amendment, however, seems to cut off that path, because it states that 'no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.') Or Trump could simply run for president and dare the Supreme Court to throw him off the ballot in the middle of an election. Should the Supreme Court blink, the decision of whether two terms of Trump are enough would fall to voters. The president has never been as popular as FDR was during his years in the White House. But if history is a guide, it would be wrong to assume the public would automatically uphold a long-established limit. Just ask Essary: 'It is difficult to believe that the mass of the people care very deeply about the third term in itself,' he wrote in 1937. 'There is nothing in our experience as a nation to prove that they do care; and there is much to indicate how little the average man concerns himself about the matter.' It's a sentiment that, some nine decades later, Trump might be willing to bet on.
