Supreme Court allows Trump now to remove agency heads from their positions without cause
Chief Justice John Roberts had already issued an administrative stay, which temporarily put those orders on hold to give the justices time to consider the government’s request. Thursday’s order extends that hold while litigation continues in a federal appeals court and, if necessary, the Supreme Court. Chief Justice John Roberts issued an administrative stay that temporarily put these orders on hold so that the justices could consider the government’s requests. Thursday’s decision extends this hold while litigation continues before a federal appeals courts and, if needed, the Supreme Court. Kagan, who called the order “nothing less than extraordinary,” would have rejected the Trump administration’s requests. The dispute stems from Trump’s attempts to remove two federal employees, Gwynne Harris of the Merits Systems Protection Board and Gwynne Willcox of National Labor Relations Board, earlier this summer. Both women were appointed to their positions by then-President Joe Biden, and their terms were set to expire in the year 2028.
Wilcox, Harris, and other federal officials went to court in Washington, D.C., arguing that their firings were illegal because, unlike many federal officials, only good cause can be used to remove them. Two federal judges ruled in favor of the officials and ordered the Trump administration to let them continue to serve. The United States Court of Appeals District of Columbia Circuit, a three-judge panel, blocked the orders. However, the full court of appellates reversed this ruling and reinstated trial judges’ instructions allowing Wilcox and Harris remain in office.
On April 9, the Trump administration asked the Supreme Court to either put the orders on hold, or, alternatively, to take up the dispute and decide on the merits without waiting for a court of appeals decision. Trump’s solicitor-general, D. John Sauer argued that the dispute involves an important constitutional issue: the president’s power to supervise agency heads who exercise their powers on his behalf.
Sauer argued Trump’s ability to fire Wilcox, and Harris, is not limited by Humphrey’s Executor v. United States. This 1935 Supreme Court decision held that while a president may typically fire subordinates without cause, Congress can create independent multi-member regulatory agency whose commissioners are only able to be removed with cause. Sauer said that the case recognized a narrow exception that only applies to multimember expert agencies, which (unlike MSPB and NLRB) have no substantial executive powers.
Harris asked the justices to refrain from interfering. Under Humphrey’s Executor, she emphasized, the MSPB’s structure is clearly constitutional, because the board is “predominantly an adjudicatory body” that “merely hears discrete cases regarding civil servants, and neutrally applies laws Congress passed prohibiting arbitrary dismissal, discrimination, and retaliation.” Harris cautioned that if the court were to conclude that the MSPB’s structure is not constitutional, then “nothing is” – including, crucially, the Federal Reserve.
Wilcox echoed Harris’s warnings about the potential implications of overruling Humphrey’s Executor. She also noted that the Supreme Court had allowed the law governing NLRB’s structure to stand for almost a century. She said that 14 presidents had not challenged the law during this time. Wilcox wrote that “no harm will be done to the real world by allowing the appellate process in the United States to continue for a few months longer.” The court’s unsigned opinion was issued after the D.C. Circuit heard oral arguments on the dispute. The Fed, it wrote, “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” The Fed, it wrote, “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
In her dissent, Kagan emphasized 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.” Because it “remains good law,” it also, she wrote, “forecloses both the President’s firings” of Harris and Wilcox and the majority’s “decision to award emergency relief.” Kagan contended that “the order allows the President to overrule Humphrey’s by fiat, again pending our eventual review.”
Kagan complained that the majority’s order “favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument–and the passage of time–needed to discipline our decision-making.”
Posted in Emergency appeals and applications, Featured
Cases: Trump v. Wilcox
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Supreme Court allows Trump to fire agency heads without cause, for now
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