Steve Swirsky Quoted in “Supreme Court Will Turn Its Attention to Presidential Authority Over Agencies”

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law.com in “Supreme Court Will Turn Its Attention to Presidential Authority Over Agencies,” by Steve Lash. (Read the full version – subscription required.)

Following is an excerpt:

With Donald Trump’s return to the presidency, the U.S. Supreme Court’s attention will shift from its June decision that the nation’s chief executive has immunity from prosecution for his official acts to whether presidents have the authority to fire appointed members of independent federal agencies. The termination issue has been teed up by Trump’s firing without cause of National Labor Relations Board Member Gwynne Wilcox in January.

Wilcox has sued Trump in the U.S. District Court in Washington, D.C., alleging she was fired in violation of the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States. In that ruling, the high court held that a president must have cause to fire a member of a federal agency engaged in quasi-legislative and -judicial activities, such as the adoption of regulations and the adjudication of their alleged violation. …

Supreme Court watchers have been saying for many months that a majority of the justices appear poised to either limit or overturn the restrictions Humphrey’s Executor has placed on the president’s authority to fire members of independent federal agencies. …

Steve Swirsky, co-chair of Epstein Becker Green’s labor-management relations practice group, said the Trump administration could go small and argue that the Humprey’s Executor precedent doesn’t apply in Wilcox’s situation because the NLRB is structured differently than the FTC, the agency at issue in that long-ago decision.

The justices would likely “be receptive to the administration’s arguments about Humphrey’s either not being good law still or it being distinguishable on these facts,” Swirsky said. “I do expect that they [would] argue that Humphrey’s is not long good law, or at minimum, that if it stands, that it doesn’t apply here.”