In an order this afternoon on its emergency docket (in Trump v. Wilcox), the Supreme Court granted the Trump administration’s request for a stay of two district-court orders that enjoined President Trump from removing a member of the National Labor Relations Board and a member of the Merit Systems Protection Board.
The order is a huge interim victory for President Trump and for the unitary-executive principle. It provides a clear signal that the Court will overturn or sharply limit its 1935 ruling in Humphrey’s Executor v. United States, which approved restrictions on the president’s power to remove members of the Federal Trade Commission.
The Court’s order is only four paragraphs long. The three liberal justices dissented in an 8-page opinion written by Justice Kagan.
The Court acknowledges that the relevant statutes prohibit the president from removing these officers without cause and that “no qualifying cause was given.” It sets forth the unitary-executive principle: “Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf….” But it observes in the tail end of that same sentence that the principle is “subject to narrow exceptions recognized by our precedents.” It then suggests that the Court’s ruling in Humphrey’s Executor doesn’t apply here because “the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” On the balance-of-harms inquiry in the stay context, it opines that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”
In its third paragraph, the Court rejects the notion that its ruling “necessarily implicate[s] the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee”: “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
Justice Kagan begins her dissent by asserting that Humphrey’s Executor “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” Whether that “significant feature” is consistent with the Constitution is of course the big question. Kagan devotes the bulk of her dissent to objecting to the use of the emergency docket “to overrule or revise existing law”:
It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law.
She argues that Humphrey’s Executor squarely applies here because, just like the FTC in that case, “the NLRB and MSPB are multi-member bodies of experts, balanced along partisan lines, with ‘quasi-legislative or quasi-judicial’ (not ‘purely executive’) functions.”
Kagan also argues that “It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held.” I’m not persuaded by her judicial-supremacist argument. Lincoln famously disclaimed any duty to follow the precedent of Dred Scott, and he followed through on his disclaimer (by, for example, signing into law a bill that outlawed slavery in the federal territories and by instructing the State Department to issue passports to free blacks). More practically, how can a president convince the Court to reject what it previously held if he can’t tee up a challenge?
Kagan welcomes the Court’s “intention to avoid imperiling the Fed,” but finds the Court’s ground of distinction unconvincing: “the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s.”