Donald Trump’s firing spree of executive branch officials include his illegal removal on January 27th of two Democratic members of the independent, five-member Equal Employment Opportunity Commission (EEOC): Chair Charlotte A. Burrows and Commissioner Jocelyn Samuels, whose terms had not expired. In taking this step, Trump extended his administration’s moves to assert unitary authority over independent agencies while ambitiously testing the constitutional limits of presidential powers to remove commissioners or directors of such agencies.

His manipulation of the agency not only contravenes federal law and extends the administration’s attacks against diversity, equity and inclusion, but undermines enforcement of our nation’s civil rights laws by threatening the rights of over 80,000 private and public sector workers who file complaints with the EEOC each year—and threatens to reverse the progress the EEOC has made by adjudicating cases and enforcing the 1964 Civil Rights Act and seven subsequent federal statutes to ensure that black, female and disabled workers and many others are no longer openly excluded from or discriminated against in jobs.

President Trump’s actions firing the EEOC Commissioners violates the EEOC Act which requires that the five members of the commission be appointed by the president for five year terms, with no more than three commissioners coming from the same political party. Crucially, the Act also envisions that commissioners—no matter their party—to serve until their five year term expires, and indeed, it permits commissioners to serve as holdovers until their successors are appointed and confirmed by the Senate. The Commission is bipartisan by design, and major decisions are taken by vote, with each Commissioner voting according to their oath of office as well as their considered opinions on civil rights matters under their jurisdiction. 

“Trump’s manipulation of the agency not only contravenes federal law and extends the administration’s attacks against diversity, equity and inclusion, but undermines enforcement of our nation’s civil rights laws.”

Despite the clear statutory term established in the EEOC Act, the Trump administration seems to believe that the presidential removal power found in Article II of the Constitution means that the president can fire EEOC Commissioners at will. The Supreme Court, in Humphrey’s Executor v. United States and in subsequent cases, has held that Congress may limit the authority of the president to remove the leadership of independent agencies. The Trump Administration has argued that the Court’s 1935 decision in Humphrey’s Executor is an extremely narrow exception in terms of Congress’ ability to limit removal of independent agency heads. 

But even with subsequent case law all the way through the Court’s 2010 decision in Free Enterprise Fund v. PCAOB until today, independent multi-member commissions who exercise quasi-judicial functions have been and continue to be protected from arbitrary removal by a sitting president. In fact, the Supreme Court declined to take up this very issue in October 2024. As a multi-member commission that exercises quasi-judicial functions, the EEOC should be safely within Humphrey’s Executor’s ambit.

Despite this case law, the Trump administration seems to disagree, with mixed results so far. In a case challenging Trump’s firing of Hampton Dellinger as the independent Special Counsel and singular head of the Office of Special Counsel, the administration argued that “restrictions on the President’s authority to remove principal officers who serve as the sole heads of executive agencies violate Article II,” and as the litigation proceeded, Dellinger dropped his case. Widening their net in a recent letter notifying Congress of the administration’s intentions, the Department of Justice (DOJ) argued that Humphrey’s Executor should be overturned to the extent necessary to legally bless President Trump’s broader firing spree involving multi-member independent agencies that adjudicate cases. Their claims are in flux as courts have begun to review Trump’s firings in these types of agencies. On March 4th, federal district court judge Rudolph Contreras permanently enjoined Trump’s firing of Merit Systems Protection Board member Cathy Harris, unless she is found to be inefficient, neglectful of duty or committing malfeasance in office.

And in a comparable case on March 6th, federal district court judge Beryl Howell ruled that Trump’s firing of National Labor Relations Board member Gwynne Wilcox was a “power grab” and “a blatant violation of the law,” and she ordered that Wilcox be reinstated. In addition to noting that “the Framers made clear that no one in our system of government was meant to be king—the President included—and not just in name only,” the judge added that the DOJ’s insisting that the president has authority to fire anyone he wants to in the executive branch is highly problematic. Her ruling also makes the seemingly obvious point that the rule of law must prevail, stating that: “Historical practice and a body of case law are, respectively, instructive and binding.” As Trump’s DOJ immediately appealed, it remains to be seen if that will stand.

All in all, Trump’s firing of countless officials across independent agencies seems to be part of an overall campaign to try to change current Supreme Court precedent and assert extremely broad presidential powers. But the rule of law still prohibits the president’s untimely and unfair removal of the EEOC commissioners. The rule of law is critically important at this moment. In the case of the EEOC, it not only protects the commissioners, but also protects the rights of all American workers to freedom from discrimination based on race, sex, age, disability or family status, as well as the rights of federal employees to freedom from discrimination, at this critical juncture in history. For all these reasons, Commissioners Burrows and Samuels should be reinstated and allowed to serve out their terms, as the law requires.