Supreme Court Allows Trump to Fire Independent Regulators for Now
Ann E. Marimow The Washington Post
Cathy A. Harris, Left, and Gwynne Wilcox sued President Donald Trump over their firings in January. (photo: Merit Systems Protection Board; National Labor Relations Board) Supreme Court Allows Trump to Fire Independent Regulators for Now
Ann E. Marimow The Washington PostALSO SEE: Judge Says Donald Trump Cannot Downsize Federal Agencies Without Congress
The order, which drew a sharp dissent from the three liberal justices, powerfully endorsed President Donald Trump’s authority over the federal bureaucracy.
The court’s unsigned order, which drew a sharp dissent from the three liberal justices, did not decide the underlying merits of the case, which will continue to play out in the lower courts. But it was a strong endorsement of presidential authority at a time when President Donald Trump is trying to seize greater control of the federal bureaucracy.
“Because the Constitution vests the executive power in the President,” the conservative majority said, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
At issue is Trump’s authority to fire Gwynne Wilcox, a former member of the National Labor Relations Board, and Cathy A. Harris, the ousted chair of the federal Merit Systems Protection Board. The NLRB oversees laws protecting workers’ rights and union elections nationwide, while the MSPB defends federal government workers against political discrimination.
Chief Justice John G. Roberts Jr. in April allowed the administration to remove Wilcox and Harris while the full court weighed how to proceed with their cases, which could affect dozens of similar independent agencies.
Lawyers for the two women said their cases also test whether the president has free rein to fire the head of the Federal Reserve Board, which sets monetary policy. But the court’s order emphasized that its reasoning does not apply to the Fed, which the majority said is “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
Instead, the order reflects the majority’s view that “the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
The conservatives said they were withholding a final decision on the firings until after the case receives full briefing and argument, adding 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 dissent, Justice Elena Kagan blasted her colleagues for using the court’s emergency docket to make a significant statement about an issue with implications for the fundamental structure of the federal government. The order, she wrote, essentially allows Trump to overrule the court’s 1935 decision in Humphrey’s Executor v. U.S. “by fiat,” at least until the justices eventually take up the case.
“Nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect — by either overturning or narrowing — one of this Court’s longstanding precedents,” wrote Kagan, who was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
Congress intentionally created bipartisan commissions made up of experts who could not be fired without cause by the president to ensure that policy decisions would be made free from politics, she wrote.
“Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency,” Kagan wrote of the firings of Wilcox and Harris.
“Today, this Court effectively blesses those deeds. I would not.”
Since returning to the White House, Trump has fired government watchdogs, members of the boards of independent agencies and rank-and-file federal workers, drawing multiple legal challenges.
Trump’s lawyers have told the Supreme Court that the president must be able to put his own people in place despite laws protecting independent agency leaders from being fired without good reason. The administration also has said it would seek to overturn Humphrey’s Executor.
Trump has repeatedly lashed out at Fed Chair Jerome H. Powell for not lowering interest rates, fueling speculation that the president might try to remove him as well. But Trump backed off last month at the urging of some senior advisers after his criticism prompted markets to fall. The president said he had “no intention of firing” Powell, who has broad support from lawmakers in both parties and has said that the Fed’s independence is protected by law.
Wilcox and Harris, who were Biden appointees, sued Trump over their firings in January, citing laws that allow removal from multimember boards “only for inefficiency, neglect of duty, or malfeasance in office.” Amid legal tugs-of-war in the lower courts, the two women were reinstated and removed multiple times.
Their lawyers urged the Supreme Court to deny the administration’s request to consider overturning Humphrey’s Executor v. U.S. on an expedited basis. The U.S. Court of Appeals for the D.C. Circuit heard argument in the case last week and could issue a ruling at any time.
The government’s position on the legal precedent, lawyers for the board members said, calls into question the constitutionality of dozens of other federal statutes that protect officials on commissions, including the Nuclear Regulatory Commission, the National Transportation Safety Board and the Fed.
Wilcox’s attorney, Deepak Gupta, said he was disappointed with the Thursday order that keeps Wilcox from performing her duties but added that the court made clear it was not deciding the merits and that “Humphrey’s Executor remains the law of the land. We look forward to continuing to defend it.”
Solicitor General D. John Sauer had rejected the claim that tenure protections for Fed officials are at issue in the cases involving Wilcox and Harris. He pointed to past court decisions in which some justices suggested the central bank may fall into a special category because of its historical status and role.
Sauer, who represents the Trump administration in court, had urged the justices to act quickly, saying that the “harm to the President is especially acute now, in the early months of his Administration.”
District court judges ruled in favor of Wilcox and Harris, initially allowing them to return to their jobs. A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit allowed the removal of the commissioners, only to be reversed by a full complement of D.C. Circuit judges.
The full appeals court said it is bound by Supreme Court precedent in Humphrey’s Executor, which upheld removal restrictions for government officials on multimember adjudicatory boards. Specifically, the justices in that case said President Franklin D. Roosevelt could not remove a member of the Federal Trade Commission because of their political differences.
The current court, however, showed in its order Thursday that it is receptive to the Trump administration’s claims. In 2020, Roberts wrote the court’s decision invalidating the structure of another independent watchdog agency, the Consumer Financial Protection Bureau, because that structure did not allow the president to fire the single director of the agency without cause.
That decision did not overrule the directive in Humphrey’s Executor that Congress can restrict the president’s power to fire officials at “multimember expert agencies that do not wield substantial executive power.”
But Justices Clarence Thomas and Neil M. Gorsuch said they were eager to go further. The Humphrey’s Executor precedent, Thomas wrote, “poses a direct threat to our constitutional structure and, as a result, the liberty of the American people.”