Majority 'favors the president over our precedent' in order allowing firings of independent agency leaders, Kagan says
The U.S. Supreme Court is allowing President Donald Trump to overrule precedent “by fiat,” pending later judicial review, Justice Elena Kagan said in a dissent last week when the Supreme Court temporarily allowed Trump to fire members of two independent agencies. (Photo from Shutterstock)
The U.S. Supreme Court is allowing President Donald Trump to overrule precedent “by fiat,” pending later judicial review, Justice Elena Kagan said in a dissent last week when the Supreme Court temporarily allowed Trump to fire members of two independent agencies.
In its unsigned May 22 order, the Supreme Court stayed a decision that had blocked Trump from firing Gwynne Wilcox, a member of the National Labor Relations Board, and Cathy Harris, the chair of the Merit Systems Protection Board.
Federal law protects members of the two agencies from removal unless there is cause to do so. No cause was given for the firings.
“Because the Constitution vests the executive power in the president,” the Supreme Court order said, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
The high court said a stay “is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.”
The Supreme Court added that a decision about the removal of Wilcox and Harris from the two agencies—which appear to “exercise considerable executive power”—does not affect protections for board members of the Federal Reserve, a “a uniquely structured, quasi-private entity.”
In her dissent joined by the two other liberal justices, Kagan criticized the Supreme Court for using the emergency docket in a way that is “short-circuiting our deliberative process” to either narrow or overturn precedent.
The precedent is the 1935 decision in Humphrey’s Executor v. United States, which held that Congress can prevent a president from removing without cause members of the Federal Trade Commission, a multimember independent agency.
“Here, the president fired the NLRB and MSPB commissioners in the teeth of Humphrey’s, betting that this court would acquiesce,” Kagan said. “And the majority today obliges—without so much as mentioning Humphrey’s.”
“Today’s order,” Kagan wrote, “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.”
News coverage indicates that the ruling apparently endorses the unitary executive theory, which says the Constitution gives a president the entire executive power and limits on that power are unconstitutional.
The cases are Trump v. Wilcox and Harris v. Bessent.
Publications covering the decision include Law.com, Law360, SCOTUSblog, Above the Law, the New York Times and the Washington Post. How Appealing links to coverage here, here and here.
Write a letter to the editor, share a story tip or update, or report an error.
