Supreme Court Justice Elena Kagan dissented as Chief Justice John Roberts backed President Donald Trump‘s right as commander in chief to remove members of independent agencies without cause, which Kagan argued “favors the president over our precedent.”
However, the High Court did block the administration from removing Federal Reserve Chair Jerome Powell, arguing that the Fed is a “quasi-private entity” that exempted it from similar grounds that allowed the other removals.
Justices Sonia Sotomayor and Ketanji Brown Jackson joined Kagan in her dissent.
Why It Matters
Trump has pursued an aggressive cutback on federal spending and workforce while replacing high-ranking officials—including those in independent agencies—with appointees Trump believes will be loyal to his agenda.
His cuts to the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) have left both agencies without enough board members to take final actions on issues before them, as Trump has not yet looked for replacements.
What To Know
Gwynne Wilcox, whom former President Joe Biden had nominated for the NLRB and Congress had confirmed in 2023, sued the Trump administration after the president opted to remove her from her position. She called Trump’s decision a “blatant violation” of federal law, which says NLRB members can only be removed for misconduct or negligence.
U.S. District Judge Beryl Howell of the District of Columbia ruled against Trump, calling his actions a “power grab” and that his interpretation of the scope of his constitutional powers was “flat wrong.”
However, the Supreme Court overruled Howell on appeal, with an unsigned opinion that stated the Constitution “vests the executive power in the President” to “remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
“We do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument,” the opinion said, indicating that the firing can proceed even as the court cases continue.
“The stay also reflects our judgment 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,” it added.
Ultimately, this means that the removal of Gwynne of the NLRB and Cathy Harris of the MSPB remains in effect despite their cases remaining under review in appeals court.
Kagan disagreed with the other justices who voted in favor of Trump, citing 90 years of precedent with Humphrey’s Executor v. United States, which she said “undergirds a significant feature of American governance: Bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”
Humphry’s established that the Constitution never gave “illimitable power of removal” to the president, saying that Congress, in creating quasi-legislative and quasi-judicial agencies, has the authority to discharge its duties “independently of executive control,” which “cannot well be doubted.”
Kagan wrote that Congress created certain agencies to “make decisions likely to advance the long-term public good,” and she stressed the president’s need for cause to override congressional authority on the matter.
“Our emergency docket, while fit for some things, should not be used to overrule or revise existing law,” Kagan wrote, adding, “It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law.”
“Today’s order, however, 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,” Kagan wrote.
“I would deny the President’s application,” she added. “I would do so based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history.”
What Happens Next
Gwynne and Harris continue to pursue a return to their previous positions, with their case playing out in appeals court.
This article includes reporting by the Associated Press.
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