It is a sign of the times that the Supreme Court may have just used its emergency docket to all but overrule an important precedent limiting executive power. That precedent is Humphrey’s Executor, a New Deal-era case establishing the constitutionality of independent agencies.
In a surprising twist, its decision to do so was both predictable and reasonable.
The cases before the court were Trump v. Wilcox and Harris v. Bessent, which concern the president’s power to fire members of the National Labor Relations Board and the Merit Systems Protection Board without showing just cause to do so. Because these boards were created by Congress as independent agencies, the cases will ultimately test whether Congress can create such agencies, or whether the unitary executive theory instead requires them to be under complete presidential control.
After lower courts held that the firings were unlawful and that the agency officials should retain (or regain) their offices, the Supreme Court ruled in favor of President Trump.
We have plenty of things to worry about in constitutional law today. But those worried about how the court will confront the unprecedented and sometimes unlawful actions of the Trump administration should save their outrage for other cases.
In the two cases here, the court held that the president was likely to prevail in his unitary executive claim, that the administration was unduly harmed by allowing the officials to keep their offices while the case was pending, and that this reasoning would not imperil the independence of the Federal Reserve. It did all of this in an emergency order, rather than waiting for the issues to arrive on the court’s regular docket.
All four of these things are noteworthy and provoked a powerful dissent by Justice Elena Kagan. But in this particular case, all four can be justified.
First, the view of a majority of Supreme Court justices that independent agencies are likely unconstitutional is a straightforward application of its most recent precedents. In Seila Law v. Consumer Financial Protection Bureau, the court held that because the Constitution vests all of the executive power in a single person who is accountable to the whole nation — the president — and because it makes the president responsible for executing the laws, the president must have control over other officials who exercise executive power.
In doing so, the court noted that past cases, such as the Humphrey’s Executor precedent, had upheld the independence of multimember agencies that did not exercise significant executive power. But it strongly suggested that this exception was very small, and that it would be hard for modern agencies to qualify. Legal observers have long expected the court to follow this logic and overrule Humphrey’s Executor sooner rather than later. Those who quarrel with this move (including Justice Kagan) disagree with the entire premise of Seila Law and the unitary executive theory. But there is not much new to see here.
The court’s view that agency officials should not keep their offices while the litigation is pending is also on strong precedential ground. Under the unitary executive premise, executive power is not theirs to exercise; it is on loan from the president. More important, even earlier cases that had departed from the unitary executive premise did not allow reinstatement as the remedy. One traditional remedy was back pay. A wrongly fired officer could sue for his salary — this is what happened in the Humphrey’s Executor case. Other cases sought a remedy of blocking particular enforcement actions. But the precedent for judicially ordered reinstatement or retention is shaky at best.
The court’s declaration that the Federal Reserve is different also has a plausible basis. In the decades after the nation’s founding, practice and precedent firmly established the constitutionality of the Bank of the United States, which operated as a corporation with some independence from the president. This suggests that monetary policy is not necessarily executive power. While the Federal Reserve today does many things beyond its core mission of monetary policy, the court would have several options for preserving at least some independent functions for the Federal Reserve.
Nor should we be too bothered that the court used the emergency docket in particular to issue such a major statement about independent agencies. Officially, the court was careful not to completely prejudge the legal issues, nor to state definitively that previous precedents about independent agencies would be narrowed or overruled. It made an honest judgment about the likelihood of success on the merits, as the law calls for.
Even if it had gone further and made such definitive statements, this is not the kind of case where that should especially concern us. It is bad when the emergency docket forces the justices to quickly take positions on tough issues that they have not had time to consider carefully. But the unitary executive question has been before the court multiple times in recent cases, with extensive briefing and argument. All of the justices have thought carefully about the legal issues and made up their minds about most of them.
The president’s ruinous tariffs, purported cancellation of birthright citizenship, renditions to foreign prisons and retaliations against his political opponents all raise far graver constitutional problems than the court’s ultimately unsurprising order in these cases. We should focus our concern there.
William Baude is a law professor at the University of Chicago and a host of the “Divided Argument” podcast and blog.
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The post The Supreme Court Ruled in Favor of Trump. And That Is OK. appeared first on New York Times.
