LISTEN LIVE: The Supreme Court hears Trump v. Slaughter in another test of presidential power

WASHINGTON (AP) — Chief Justice John Roberts has led the Supreme Court’s conservative majority on a steady march to increase presidential power, which began long before Donald Trump arrived in the White House.

The justices could take the next step in a case being argued Monday that calls for overturning a 90-year-old unanimous decision limiting executive power.

Listen to Monday’s arguments live starting at 10 a.m. EST in the video player above.

The court’s conservatives, as liberal Justice Elena Kagan noted in September, appear to be “eager to take this action.”

They have already allowed Trump, in the first months of the GOP’s second term, to fire almost everyone he wants, despite the court’s 1935 decision in the Humphrey Executors case, which prohibits the president from firing the heads of independent agencies without cause.

Read more: Chief Justice Allows Trump to Remove FTC Member for Now

The officials include Rebecca Slaughter, whose expulsion from the FTC was at issue in the current case, as well as officials from the National Labor Relations Board, the Merit Systems Protection Board, and the Consumer Product Safety Commission.

The only two officials who have so far survived efforts to remove it are Lisa Cook, the governor of the Federal Reserve, and Shira Perlmutter, a copyright officer at the Library of Congress. The court has already suggested it would view the Fed differently from other independent agencies, and Trump has said he wants to impeach it over mortgage fraud allegations. Cook says she did nothing wrong.

Humphrey’s enforcer has long been a target of the conservative legal movement that has embraced an expansive view of presidential power known as unitary executive power.

The case before the Supreme Court concerned the same agency, the Federal Trade Commission, that was at issue in 1935. The justices established that presidents — Democrat Franklin Roosevelt at the time — could not fire appointed leaders in the alphabet soup of federal agencies without cause.

The decision ushered in the era of powerful, independent federal agencies charged with regulating labor relations, employment discrimination, the air waves, and much else.

Proponents of the unitary executive theory have argued that the modern administrative state gets the Constitution wrong: federal agencies that are part of the executive branch are accountable to the president, including the ability to remove their leaders at will.

As Justice Antonin Scalia wrote in a 1988 dissent that has gained legendary status among conservatives, “This does not mean some executive power, but all executive power.”

Since 2010, under Roberts’ leadership, the Supreme Court has steadily scaled back laws restricting the president’s ability to fire people.

In 2020, Roberts wrote for the court that “the power to impeach the president is the rule, not the exception” in a decision upholding Trump’s removal of the head of the Consumer Financial Protection Bureau despite job protections similar to those upheld in the Humphrey case.

In the 2024 immunity resolution that spared Trump from prosecution over his efforts to overturn the results of the 2020 election, Roberts included the firing authority among the president’s “decisive and exclusive” powers that Congress lacks the authority to restrict.

But according to legal historians and even prominent proponents of the originalist approach to interpreting the Constitution favored by conservatives, Roberts may be wrong about the history underlying unitary executive power.

“The text and history of Article II are far more ambiguous than the current Court suggests,” wrote Caleb Nelson, a University of Virginia law professor who once served as a law clerk to Justice Clarence Thomas.

Jane Manners, a law professor at Fordham University, said she and other historians have submitted briefs to the court to provide history and context about the removal power in the country’s early years that could also prompt the court to revise its views. “I’m not holding my breath,” she said.

Slaughter’s lawyers embrace the arguments of historians, telling the court that the limits on Trump’s power are consistent with the Constitution and the history of the United States.

The Justice Department says Trump can fire board members for any reason while he works to implement his agenda, and that precedent should be abandoned.

The Attorney General, Dr. John Sawyer: “Humphrey’s enforcer was always terribly wrong.”

The second question in the case could affect Cook, the Fed governor. Even if the dismissal is found to be unlawful, the court will want to decide whether judges have the authority to reinstate someone.

Justice Neil Gorsuch wrote earlier this year that fired employees who won in court would likely get their pay back, but not be reinstated.

This could affect Cook’s ability to stay in her job. The justices appeared concerned about the economic uncertainty that would result if Trump was able to fire the central bank leaders. The court is scheduled to hear separate arguments in January on whether Cook can remain in her job while her lawsuit challenges the proceeds of her dismissal.