Britain’s Prime Minister Rishi Sunak (C) sits with Britain’s Education Secretary Gillian Keegan (2L) as President of the Union of Jewish Students, Edward Isaacs (R) attends a meeting with Vice Chancellors from some of the country’s leading universities, and representatives from the Union of Jewish Students, inside Downing Street in central London on May 9, 2024, following the launch of pro-Palestine encampments at UK universities around the country. Students at Universities across the country have begun on-campus protests against Israel’s actions in Gaza. Pro-Palestinian protests have rocked US campuses for weeks, spreading to countries including the UK, France and Australia. (Photo by Carl Court / POOL / AFP) (Photo by CARL COURT/POOL/AFP via Getty Images)
In politics, just as in comedy, timing is everything.
On Monday, Rishi Sunak revealed to the nation what his big takeaway was from the local elections, in which the Tories lost 500 councillors and all but one of the 11 mayoral contests.
“These results suggest we are heading for a hung parliament,” the prime minister told The Times.
According to the Electoral Calculus website, if those results were mirrored at the general election later this year, the Tories would be left with 13 MPs and the Labour would have a majority of 452.
While no one seriously expects things to be as bad as that for the Conservatives, very few share the PM’s view that the result remains in the balance.
To be fair to Sunak, there was some psephological evidence to back up his seemingly far-fetched claim.
In their analysis of the local elections, polling gurus Colin Rallings and Michael Thrasher said that based on the results, the national equivalent vote share (NEV) put Labour just seven points ahead of the Tories.
If that was repeated at the general election, they said, it would leave Labour as the largest party but short of an overall majority.
Like a drowning man desperately clinging to a piece of driftwood, the prime minister tried to present their forecast as proof that the Tories are not heading for electoral oblivion. The problem for the PM, though, is that no one believes him, least of all a host of other polling experts.
Chris Hopkins, political research director at Savanta, said: “Nothing has happened in the past week to change our view that Labour are on course for a substantial majority. The Tories areon for a pasting.”
He said the PM’s hung parliament claims were “frankly a wilful misunderstanding of how these things work”.
“There is limited potential for a change in the polling and it would take something monumental, like a Labour imposion,” Hopkins added.
“A hung parliament is the best the Conservatives could hope for and they would need some sort of miracle to achieve that.”
Ben Page of Ipsos said talk of a hung parliament was “for the birds”, while Luke Tryl of More in Commons also dismissed the idea.
He said: “My view is you can’t conclude from this set of election results that we are heading to a hung parliament. The best estimate we can make … suggests current voting intention is closer than some of those 25-point leads, but would still be at Blair majority levels.”
Tory MPs are equally dismissive of the PM’s apparent optimism.
“All he’s doing is giving people more of an excuse to vote Labour to kick us out,” said one former minister.
Nothing has happened in the past week to change our view that Labour are on course for a substantial majority. The Tories are on for a pasting.
A cabinet minister told HuffPost UK that the Tories could be reduced to a rump of just 100 MPs if Nigel Farage decides to campaign for Reform UK.
“We could get 200 on a good day, but you can halve that if Farage gets involved and peels away voters to Reform,” the minister said.
On the impact Farage could have during an election campaign, Luke Tryl said: “He makes it less likely the Reform vote gets squeezed because he knows how to take up air time and command the news agenda very successfully.
“I don’t think he necessarily turbo-charges things, but it he were in the race I wouldn’t be surprised if we don’t see as much of a fall in the Reform vote.”
Natalie Elphicke’s shock defection on Wednesday to Labour was another gut-punch for Sunak.
“It knocked us for six,” said one Tory MP who was in the Commons when the right-wing Dover MP dramatically crossed the floor minutes before PMQs.
Labour leader Sir Keir Starmer with former Conservative MP Natalie Elphicke in his parliamentary office in the House of Commons, London, after it was announced she has defected to Labour, hitting out at the “broken promises of Rishi Sunak’s tired and chaotic government”. Picture date: Wednesday May 8, 2024. (Photo by Stefan Rousseau/PA Images via Getty Images)
Elphicke’s decision to switch sides has also been a test for Labour MPs, which those around Keir Starmer believe many of them have failed.
The official photos of the Labour leader welcoming the party’s latest recruit had not even been released before the anti-Elphicke briefings began from her new colleagues.
How could someone with such outspoken views on immigration – and who had defended her former Tory MP husband after his conviction for sexual assault – be accepted into the party?
But one shadow cabinet member told HuffPost UK: “This close to an election, how could we refuse?”
A senior Labour source added: “The reaction to it has shown that too many of our MPs still have an opposition mindset.”
One of Elphicke’s former Tory colleagues said: “Having to accept decisions that you don’t agree with is what government is about. Labour MPs need to remember that they need voters with the same views as Natalie to win the election.”
With every passing day, Sunak’s authority ebbs away while Labour look increasingly like a government in waiting. It is no surprise that so many at Westminster wonder how the PM will struggle to keep his government on the road for another six months.
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<img src="https://api.follow.it/track-rss-story-loaded/v1/-Bnf1EuwFsW8GwYz9Llg6Hn9ye8UNv30" border=0 width="1" height="1" alt="Will the court overturn a 1930s precedent to expand presidential power, again?" title="Will the court overturn a 1930s precedent to expand presidential power, again?"> <img width="150" height="150" src="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-150x150.jpg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="Will the court overturn a 1930s precedent to expand presidential power, again?" title="Will the court overturn a 1930s precedent to expand presidential power, again?" style="float:right;" decoding="async" srcset="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-150x150.jpg 150w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-570x570.jpg 570w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-500x500.jpg 500w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-1000x1000.jpg 1000w" sizes="(max-width: 150px) 100vw, 150px" /><p><a class="a2a_button_facebook" href="https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Facebook" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_linkedin" href="https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="LinkedIn" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_twitter" href="https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Twitter" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_email" href="https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Email" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_printfriendly" href="https://www.addtoany.com/add_to/printfriendly?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="PrintFriendly" rel="nofollow noopener" target="_blank"></a><a class="a2a_dd addtoany_no_icon addtoany_share_save addtoany_share" href="https://www.addtoany.com/share#url=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&title=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" data-a2a-url="https://www.scotusblog.com/2025/04/will-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again/" data-a2a-title="Will the court overturn a 1930s precedent to expand presidential power, again?">Share</a></p><p>In the two-and-a-half months since Donald Trump’s inauguration, a rush of challenges to executive orders and directives have made their way through the courts and have now started to reach the justices in earnest. Alongside those orders, Trump fired the heads of several independent government agencies, experts who oversee technical matters of government including the enforcement of antitrust laws and review of federal workers’ challenges to their dismissals. Although the president can remove most government officials for any reason, those positions are protected by Congress from firing without good cause, such as “malfeasance in office,” and by a 1935 Supreme Court case that upheld such for-cause limits.</p>
<p>But some conservative legal scholars, and the president, have embraced a much broader view of executive power, one in which the president has complete authority to fire agency heads. The administration has indicated that it will ask the Supreme Court to overturn a 1935 decision, <a href="https://supreme.justia.com/cases/federal/us/295/602/"><em>Humphrey’s Executor v. United States</em></a><em>, </em>which would allow the president to do just that<em>. </em>In that decision, the court barred Franklin Delano Roosevelt from firing a Republican member of the Federal Trade Commission. The decision protects the heads of independent, multimember agencies from unjustified removal to allow the agencies to function without the threat of political retaliation.<span id="more-319731"></span></p>
<p>On Monday, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Trump administration to reinstate Cathy Harris, of the Merit Systems Protection Board, and Gwynne Wilcox, of the National Labor Relations Board. Harris and Wilcox were fired in February and argue that they were illegally removed without the cause that the law requires. The federal government appealed to the Supreme Court on Wednesday, and just hours later Chief Justice John Roberts put both reinstatements on hold while the court considers the request.</p>
<p>I spoke recently with Stephen Vladeck, a professor at Georgetown University Law Center and close observer of the recent rise of the court’s emergency docket. His book on the subject is called <em>The Shadow Docket.</em> We discussed how likely the current court is to overrule <em>Humphrey’s Executor</em> and what might stand in its way, even as the majority has embraced an expansive view of executive power.<em> </em></p>
<p><em>Our conversation was conducted by phone and email and has been edited for clarity. </em></p>
<p><strong>Back in February, then-Acting Solicitor General Sarah Harris wrote in a letter to Congress that the Trump administration planned to challenge <em>Humphrey’s Executor</em>, is there a history of presidents ignoring or pushing that precedent since the 1930s?</strong><strong> </strong></p>
<p>The short answer is no. Obviously opposition to <em>Humphrey’s Executor</em> has become something of a cause célèbre especially among conservative judges and scholars, but this is the first time I think we’ve seen the justice department specifically take the position not just that it’s wrong, but that it should be overruled.</p>
<p><strong>What about FDR, where does the case come out of? </strong></p>
<p>FDR took the position that, under the Supreme Court’s <a href="https://supreme.justia.com/cases/federal/us/272/52/">1926 ruling in <em>Myers</em></a>, he had the unencumbered power to remove anyone on the Federal Trade Commission and the Supreme Court said he was wrong. The Supreme Court in <em>Humphrey’s Executor </em>unanimously upheld the for-cause removal limitations that Congress had written into the FTC act.</p>
<p>So at least since 1935, presidents of both parties have labored under the assumption that that’s at least good law, whether or not it’s rightly decided, and so have not attempted to remove members of the FTC or the NLRB, or perhaps even more importantly the Federal Reserve, without at least some argument that they met the relevant statutory requirements of good cause.</p>
<p><strong>Was there any analogous protection for that relationship between Congress and the executive before the New Deal era</strong><strong> </strong></p>
<p>Congress had started putting in for-clause removal restrictions long before FDR came along. I think it was just that FDR was, if not the first president, certainly the most vocal president about the scope of a president’s constitutional removal powers. In some respects, I think it was the Supreme Court that changed things when it handed down <em>Myers.</em> Because there’s language in Chief Justice Taft’s majority opinion in <em>Myers</em> that for the first time opened the door to arguments that for-cause removal restrictions were generally unconstitutional. So if we’re building the chronology, the restrictions existed, and then <em>Myers</em> comes along and suggests, perhaps inartfully, that all of them might be unconstitutional. And then <em>Humphrey’s Executor</em> was basically the test case for that proposition.</p>
<p><strong>Interesting that Taft was the one that comes under.</strong></p>
<p>There’s a profound historical irony in the fact that it’s the only president to ever serve on the court who’s in a position in <em>Myers</em> to endorse a very very broad and indefeasible presidential removal power.</p>
<p><strong>So back to where <em>Humphrey’s Executor</em> sits today, how narrow are those protections?</strong></p>
<p>One of the tricky things about <em>Humphrey’s Executor</em> is that, even though the Supreme Court hasn’t overruled it, it has to at least some degree reconceptualized it. <em>Humphrey’s Executor</em> itself, if you read Justice Sutherland’s opinion, spends a lot of time talking about how what the FTC does is not purely executive power. Instead, he talks about the quasi-judicial role that the FTC plays and even in some respects, the quasi-legislative role that the FTC plays.</p>
<p>Even though the modern court has not overruled <em>Humphrey’s</em> <em>Executor,</em> it has really, I think, heavily watered down that understanding. Indeed, it has increasingly come to treat <em>Humphrey’s Executor</em> as this extreme outlier — as one of two Supreme Court precedents that are at least superficially inconsistent with the broad view of the unitary executive toward which the court has otherwise gravitated, <em><a href="https://supreme.justia.com/cases/federal/us/487/654/">Morrison v. Olson</a> </em>being the other.</p>
<p>So the Supreme Court today basically takes the view that there’s <em>Morrison, </em>there’s <em>Humphrey’s Executor</em> and there’s nothing else. And that was the basis for the court’s <a href="https://www.scotusblog.com/case-files/cases/seila-law-llc-v-consumer-financial-protection-bureau/">2020 ruling in <em>Seila Law</em></a> that Congress could not insulate the head of the Consumer Financial Protection Bureau from presidential removal because, unlike the head of these multi-member commissions, the head of the CFPB is a single person.</p>
<p>In a world in which we were being faithful to the analysis of <em>Humphrey’s Executor</em> and not just the result, it shouldn’t make a difference whether the head was a single person or a multimember board; all that would matter is the type of power that the agency was wielding. But in a world in which <em>Humphrey’s Executor </em>and<em> Morrison </em>are nothing more than exceptions to the rule, then all of the litigation tends to reduce to whether the agency structure at issue is just like the exceptions or not.</p>
<p><strong>You mentioned the Fed before, where does the Fed stand?</strong></p>
<p>Part of why I believe that even this court has been reluctant to overrule <em>Humphrey’s Executor,</em> and it’s had chances, is because I think there is an unspoken but widely shared view that the independence of the Fed (and no other agency) is really important. I don’t think the court has yet been provided with a coherent rationale for a way in which it could overrule <em>Humphrey’s Executor</em> without also undermining the independence of the Fed, and thereby risking yet further harm to the stability of our economic system.</p>
<p>Of course, these cases are not just about the FTC and the Fed — there are a bunch of multimember-headed agencies, the SEC, the FCC, the Merit Systems Protection Board, etc., that are implicated by <em>Humphrey’s Executor</em>. But I think the real 800-pound gorilla is the Fed. Maybe it’s enough to just assert that the Fed is different, but at least to this point, there’s been no persuasive explanation for why, legally, that’s so.</p>
<p><strong>But given how the court has handled what’s come to them so far from the Trump administration, is the field wide open for them to take on <em>Humphrey’s</em> <em>Executor</em>? </strong></p>
<p>I think two things can be true. One, I think the court would rather not have to decide one way or the other. And two, I think the Wilcox and Harris cases were always going to force the court to take up the question.</p>
<p><strong>Do you have a sense of where the justices stand individually on this?</strong></p>
<p>I don’t doubt that there are more than two votes to overrule <em>Humphrey’s Executor. </em>But, to me, the most important data point here is that the court has thus far resisted invitations to do so. And if the court were in a hurry to overrule <em>Humphrey’s Executor</em>, I think it would have already.<em> </em></p>
<p>Maybe that was just because it didn’t have to face the issue; maybe there are five or more votes on the merits. But if the theory is correct that at least some of the justices’ reticence is because they don’t want to undermine the independence of the Fed, at least so far, no one has been able to square that circle.</p>
<p><strong>On Wednesday, the chief justice moved very quickly to pause the district court’s orders that had reinstated Harris and Wilcox, just hours after the administration appealed to the court. Does that tell us anything? What do you have your eye on for what happens next?</strong></p>
<p>I think it tells us two things — first, that the chief justice may have been a bit exasperated by the ping-pong nature of the proceedings in the lower courts, where Harris and Wilcox were fired, then not fired, then fired, then not fired again. And second, it strongly suggests to me that the court <em>is</em> going to use these cases to resolve the <em>Humphrey’s Executor</em> question — perhaps not by answering it through the Trump administration’s emergency application, but by taking up the government’s request that it treat the application as a petition for certiorari before judgment, and take up these cases for plenary review on an expedited basis now. If nothing else, it seems increasingly likely that the fate of <em>Humphrey’s Executor </em>will be resolved before the justices rise for their summer recess.</p>
<p>The post <a href="https://www.scotusblog.com/2025/04/will-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again/">Will the court overturn a 1930s precedent to expand presidential power, again?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>
Britain’s Prime Minister Rishi Sunak (C) sits with Britain’s Education Secretary Gillian Keegan (2L) as President of the Union of Jewish Students, Edward Isaacs (R) attends a meeting with Vice Chancellors from some of the country’s leading universities, and representatives from the Union of Jewish Students, inside Downing Street in central London on May 9, 2024, following the launch of pro-Palestine encampments at UK universities around the country. Students at Universities across the country have begun on-campus protests against Israel’s actions in Gaza. Pro-Palestinian protests have rocked US campuses for weeks, spreading to countries including the UK, France and Australia. (Photo by Carl Court / POOL / AFP) (Photo by CARL COURT/POOL/AFP via Getty Images)
Labour leader Sir Keir Starmer with former Conservative MP Natalie Elphicke in his parliamentary office in the House of Commons, London, after it was announced she has defected to Labour, hitting out at the “broken promises of Rishi Sunak’s tired and chaotic government”. Picture date: Wednesday May 8, 2024. (Photo by Stefan Rousseau/PA Images via Getty Images)
