This might be the worst—and shadiest—Supreme Court decision yet
Late on Thursday afternoon, the Supreme Court stealthily ruled that President Donald Trump’s firings of the heads of two independent agencies could stay in effect while litigation continues. Without directly saying so, the conservative majority just tossed a 90-year precedent out the window, all so that Trump can consolidate more power.
This case, Trump v. Wilcox, started when Trump removed Cathy Harris, head of the Merit Systems Protection Board, and Gwynne Wilcox, chair of the National Labor Relations Board. There’s no question that the president has complete control over who heads Cabinet agencies. However, independent agencies like the NLRB and the MSPB are intended to be insulated from presidential whims and vendettas. The heads of those agencies serve fixed terms and can only be removed for cause. Congress deliberately created this independence, but since the Supreme Court is totally down with Trump’s wild expansion of the executive branch, that doesn’t seem to matter.
Trump didn’t even pretend that he was removing Harris and Wilcox for any legitimate reason, which was a conscious choice. It was designed to get this exact result from the Supreme Court—a green light to destroy independent agencies.
One little problem stood in Trump’s way: Humphrey’s Executor v. United States. Franklin D. Roosevelt tried to remove members of the Federal Trade Commission, but the high court held that he could only do so for cause, as laid out by Congress. Back then, the court apparently understood that independent agencies only stay independent if they are protected from the president being able to remove people arbitrarily. But independent agencies don’t fit with Trump’s vision of a vast unitary executive, where the president controls everything.
Related | Trump is breaking the law—and he wants you to know that
Both Harris and Wilcox sued over their removal. Lower courts reinstated them, so of course Trump did what he always does: run to the Supreme Court and beg to get his way. The court obliged Trump quite nicely here, as Harris and Wilcox are now out while the case grinds through the lower courts. In theory, this is temporary, with the court saying they are not making a final decision on the merits, but we should be under no illusion that this isn’t a full-throated reversal of Humphrey’s Executor, despite the majority never mentioning that case or explaining why it doesn’t apply here.
The conservative justices also, absurdly, rested their decision on the idea that the churn of removing and reinstating Harris and Wilcox is worse than just having them keep their positions while litigation continues. This rewards the administration’s lawfare strategy to ceaselessly fight every battle in court. There’s absolutely no doubt that the least disruptive thing for agencies would be for their existing heads to remain until a final decision is made. The justices know this, but they don’t care.
It would be remiss to skip over Justice Elena Kagan’s dissent here, which is fire. She calls out the majority for bowing to Trump:
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. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey's, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey's.
Kagan hits the nail on the head here. The court just used the shadow docket to throw out a huge precedent without explanation and without the benefit of a full record from a fully litigated case. They did so with a topsy-turvy short explanation that flips the law and wipes out independent agencies. If Trump can now remove any head or member of an independent agency for no reason and if Humphrey’s is no longer applicable law, then Trump effectively has complete control. And the conservatives on the court are just fine with that.
Oh, with one big exception. Harris and Wilcox had argued—correctly—that if they can be removed without cause, so can Jerome Powell, the head of the Federal Reserve, because that body is structured the exact same way as the NLRB and the MSPB. But the majority made an arbitrary carveout for the Fed, saying it is a “uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks” and therefore isn’t the same. As Mark Joseph Stern said on Bluesky, “this bespoke exception for the Fed is one of the most brazenly made-up things I've ever seen the Supreme Court do.” Yep
The sole reason to protect the Fed like this is because the Supreme Court is trying to prevent Trump from further crashing the economy by destabilizing the Fed through removing Powell. No law supports this. There’s no reasoning in the opinion. But it’s stark evidence that the only thing the conservative court majority does care about is the economy. Harris’ and Wilcox’s removals mean that federal employees have no way to contest their firings and unions cannot bring any labor actions—and this troubles the majority not at all.
This decision is the clearest example yet that the conservatives on the court are no longer a judicial body. They are now a policy-making body eager to support and achieve conservative results, whether the law allows them to or not. In other words, they’re the perfect court for Trump.
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