Earlier this year, President Felonious Trump fired Gwynne Wilcox, a member of the National Labor Relations Board (NLRB), and Cathy A. Harris, the chair of the Federal Merit Systems Protection Board (MSPB). Wilcox sued, and the district court in the District of Columbia enjoined the President from removing her. Federal statutory law prohibits the president from removing the plaintiff officers except for cause. See 29 U. S. C. § 153(a); 5 U. S. C. § 1202(d). Felonious Trump identified no such cause.
Felonious Trump took the case up to the Supreme Court, not on the merits, but on the propriety of the interlocutory stay. Last week, the Court reversed the stay, and remanded the case to be heard on its merits.[1] But in addressing the stay, the Court necessarily addressed the merits, as it was required to do, in assessing the likelihood of success. The net result was that the Court signaled its embrace of an imagined unitary and totalitarian conception of the president’s power.
In an unsigned opinion, the Court went beyond its limited role in addressing the interlocutory injunction, when it declared:
“Because the Constitution vests the executive power in the President, see Art. II, § 1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf.”[2]
This assertion begged the question whether these officers were the sort of executive officers whom the president can remove at will. The Court’s reasoning was unusually anemic. The Court assumed that the two fired officials exercise “considerable executive power,” which thus puts them at the mercy of the president. Of course, the whole point of independent agencies is that they exercise hybrid executive-legislative-judicial power. The Court briefly acknowledged that there are “exceptions,” but left for the litigation’s outcome to address them.[3]
Wilcox and Harris invoked the specter of Trump’s removing, without cause, members of the Federal Reserve’s Board of Governors. Felonious Trump has intimated he wanted to fire Jerome Powell, but has for the while backed off his threats, after the stock market tanked in response to his palavering. The Court went out of its way to distinguish the Federal Reserve as “a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”[4] All the independent agencies, however, are uniquely structured and designed so as not to be under the complete control of the president.
In dissent, Justice Elena Kagan, joined by Justices Sotomayor and Jackson, 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 [5] “by fiat,” at least until the justices eventually take up the case. In the meanwhile, the Court takes up the surrender monkey posture of some of our leading law firms.
Justice Kagan understandably emphasized the abandonment of precedent in obeisance to Trump, as well as its ignoring and abandoning the legitimate interests of Congress in fashioning an independent agency. Justice Kagan also noted that the Court’s ruling on the interlocutory stay threw out “the presumption of constitutionality which attaches to every Act of Congress,” as somehow unworthy of consideration in an equitable analysis of the stay.
Although Justice Kagan enjoyed the better grounded argument, the dissent did not go far enough. Her dissent never actually identified the full range of executive branch interests at stake. The NLRB and the MSPB were created by statutes, passed by Congress, but which presidents signed.
In 1935, Congress passed the National Labor Relations Act to advance a policy encouraging collective bargaining. The Act was signed into law by President Franklin Roosevelt. The NLRB was created by the Act, passed by Congress, and made law by the executive.
Similarly, the Merit Systems Protection Board is an independent, quasi-judicial agency that protects the federal merit system. The Board was created by statute, and was codified by the Civil Service Reform Act of 1978, Public Law No. 95-454. This legislation was signed into law by President Jimmy Carter.
Executive power was involved in creating both boards, and in specifying the protections that board members would enjoy in doing their jobs. The firings by Felonious Trump were thus in derogation of executive power, as much as they were of legislative power. So once again, the Court has allowed Felonious Trump to ignore law that previous presidents, who exercised their executive power to create the for-cause protections. The executive may be unitary, but it is bound by laws that it enacts in conjunction with the legislature. The logic of the Court’s position implies that there is no limit to a president’s power to ignore statutory law.
[1] Trump v. Wilcox, ___ S.Ct.___, 605 U. S. ____ (May 22, 2025) [Slip op.]. See Nina Totenberg, “Supreme Court allows Trump to fire members of independent agency boards — for now,” Nat’l Public Radio (May 22, 2025).
[2] Slip op. at 1.
[3] Id. (“Because the Constitution vests the executive power in the President, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”).
[4] Slip at 2.
[5] Humphrey’s Executor v. United States, 295 U. S. 602 (1935).
