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Bloomberg
24-05-2025
- Politics
- Bloomberg
The Conservative Constitutional Revolution Is Gaining Speed
In a cavalier, under-reasoned two-page opinion, the Supreme Court announced its intention to overrule a century of precedent and roll back the existence of independent agencies, one of the linchpins of the modern administrative state. The president now has the authority to fire the head of any agency for virtually any reason — even when Congress has stipulated that such officials can only be dismissed for cause. While the court signaled that it would exempt the Federal Reserve from its new regime, we are witnessing a stunning conservative constitutional revolution. This shift undermines the foundational principle that certain government employees should be nonpartisan professionals hired for their expertise, not political loyalty. The decision in Trump v. Wilcox did not follow the usual process of full briefing and oral argument — standard in even the most routine Supreme Court cases, let alone those that will be remembered as era-defining. Instead, it reached the justices through the court's 'emergency docket,' a fast-track process that takes place when parties seek urgent relief and the Supreme Court must decide whether emergency intervention is justified.
New York Times
23-05-2025
- Politics
- New York Times
The Supreme Court Ruled in Favor of Trump. And That Is OK.
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.
Yahoo
23-05-2025
- Business
- Yahoo
Supreme Court implies it will let Trump fire members of any agency other than the Fed
WASHINGTON - In a win for President Donald Trump in his efforts to take control over independent agencies, the Supreme Court allowed him on May 22 to keep two Democratic members of federal labor boards away from their posts while their challenge to his firing of them proceeds. But it also suggested that the Federal Reserve Board of Governors would be exempt from any future decisions in the cases. The high court signaled in its opinion that it may ultimately overturn a 1935 precedent and side with Trump in the underlying cases, allowing him to permanently remove without cause members of boards that Congress created to be independent of direct presidential control. But the court also indicated that it would distinguish between the Fed and other agencies. The court temporarily blocked orders by two separate Washington-based federal judges that had shielded Cathy Harris from being dismissed from the Merit Systems Protection Board (MSPB) and Gwynne Wilcox from being removed from the National Labor Relations Board (NLRB) before their terms expire. Their legal challenges are ongoing in lower courts. Both were appointed to their posts by Trump's Democratic predecessor Joe Biden. In a brief, unsigned opinion, the court said that its action on Thursday "reflects our judgment that the government is likely to show that both the NLRB and MSPB exercise considerable executive power." "Because the Constitution vests the executive power in the president," the court wrote, "he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents." The court has a 6-3 conservative majority. Its three liberal justices dissented from the opinion. The opinion also addressed fears voiced by critics that allowing the firings of Wilcox and Harris would jeopardize the independence of the Federal Reserve. "We disagree," the court stated. "The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States." The legal fight over these firings emerged as an important test of Trump's efforts to bring under his sway federal agencies meant by Congress to be independent from the president's direct control. Trump's move to oust Harris and Wilcox was part of his far-reaching shakeup and downsizing of the U.S. government, including firing thousands of workers, dismantling federal agencies, installing loyalists in key jobs and purging career officials. Chief Justice John Roberts on April 9 temporarily halted orders by the two judges who had blocked Trump's firing of Harris and Wilcox, giving the justices more time to decide how to proceed. The labor boards after that decision by Roberts had confirmed that Harris and Wilcox were no longer in their posts. U.S. District Judges Rudolph Contreras and Beryl Howell separately upheld federal laws protecting officials serving in these posts from being fired without cause, rejecting Trump's argument that the measures passed by Congress encroach on authority granted to the president under the U.S. Constitution. The U.S. Court of Appeals for the District of Columbia Circuit on April 7 declined to pause the rulings by the judges while the cases proceed after an earlier ruling by that court had permitted the removals. Harris was appointed by Biden in 2022 to serve a seven-year term. Trump moved to fire her on February 10 after naming Henry Kerner, a Republican, as acting chair of the Merit Systems Protection Board. Federal workers who lose their jobs can bring a challenge before the merit board, an independent three-member panel with quasi-judicial powers, seeking to be reinstated. The board has proven to be a potential roadblock to the Trump administration's efforts to carry out mass firings of probationary workers, meaning those recently given their positions. Trump's efforts to remove Harris have threatened to leave the board without a two-seat quorum - making it unable to decide cases - after the term of Democratic member Raymond Limon expired on February 28. In ruling in favor of Harris, Contreras said the statutory protections for board members from being removed without cause conform with the Constitution in light of a 1935 Supreme Court precedent in a case called Humphrey's Executor v. United States. In that case, the court ruled that a president lacks unfettered power to remove commissioners of the U.S. Federal Trade Commission, faulting then-President Franklin Roosevelt's firing of a commissioner on that agency for policy differences. Federal law permits a president to remove an official serving in this post only with cause such as inefficiency, neglect of duty or malfeasance. Howell, the judge overseeing Wilcox's case, ruled on similar grounds to uphold almost identical job protections for the National Labor Relations Board member. The National Labor Relations Board, which has five members when fully stocked, enforces laws protecting the rights of private-sector workers to organize, join labor unions and advocate for better working conditions, and it oversees union elections. Federal labor law generally does not allow workers to sue for violations in court, so the board is often their only recourse. Wilcox, the first Black woman to serve on the National Labor Relations Board, was appointed to a second five-year term in 2023 by Biden for a new term. Trump moved to fire her on January 27. Without Wilcox, the board would lack its needed three-seat quorum because it already had two vacancies. This article originally appeared on USA TODAY: Supreme Court lets Trump keep labor board members sidelined for now
Malay Mail
23-05-2025
- Business
- Malay Mail
‘We disagree': US Supreme Court allows Trump to fire independent board members — but not at Fed
WASHINGTON, May 23 — The US Supreme Court yesterday allowed President Donald Trump to fire leaders of two independent agencies, but signalled that such dismissals would not be permitted for the Federal Reserve. The 6-3 decision puts on hold a lower court's order that the two leaders be reinstated and marks a major win for Trump in his bid to greatly expand presidential power over historically independent government agencies. The case has been closely watched over what it could entail for the Fed, another independent agency whose rate-setting committee holds immense power in the world's biggest economy and whose chairman Trump has fiercely criticised. A decision permitting Trump to fire Federal Reserve board members could send shock waves rippling through the global economy, with the US central bank's independence thrown into question. But the court's six-member conservative majority appeared to carve out a special exemption for the central bank. The two agency heads who had sued Trump, alleging that their firings were illegal, had claimed that any decision to the contrary would also implicate the Federal Reserve. 'We disagree,' said the majority. 'The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,' the justices added. The court nonetheless permitted Trump's firing of Gwynne Wilcox and Cathy Harris, both Democratic members of independent quasi-judicial labour boards, despite federal laws saying that they can only be dismissed for 'cause.' Wilcox was a member of the National Labor Relations Board (NLRB), which oversees unionisation and other labour disputes from around the country. Harris was a member of the Merit Systems Protection Board (MSPB), which protects federal workers from political discrimination and other unlawful employment practices. The conservative majority said that the Constitution allows Trump to 'remove without cause' officials exercising executive authority on his behalf, 'subject to narrow exceptions recognised by our precedents.' The Supreme Court's three liberal justices dissented from the ruling, saying the two agency board members should be protected at this stage under a landmark 1935 decision. — AFP
Yahoo
22-05-2025
- Business
- Yahoo
Supreme Court declines to reinstate independent agency board members fired by President Donald Trump
WASHINGTON (AP) — The Supreme Court's conservative majority on Thursday said President Donald Trump likely has the authority to fire independent agency board members, endorsing a robust view of presidential power. But the court suggested that it could block an attempt to fire Federal Reserve Chair Jerome Powell, who Trump has complained has not cut interest rates aggressively. The court's action essentially extended an order Chief Justice John Roberts issued in April that had the effect of removing two board members who Trump fired from agencies that deal with labor issues, including one with a key role for federal workers as Trump aims to drastically downsize the workforce. The firings have left both agencies without enough board members to take final actions on issues before them, as Trump has not sought to appoint replacements. The decision Thursday keeps on hold an appellate ruling that had temporarily reinstated Gwynne Wilcox to the National Labor Relations Board and Cathy Harris to the Merit Systems Protection Board. While not a final ruling, the court said in an unsigned order that the Constitution appears to give the president the authority to fire the board members "without cause.' The court's three liberal justices dissented. "Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency,' Justice Elena Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The court refused to reinstate Harris and Wilcox while their cases play out in the courts over warnings from their lawyers that their action would signal that Trump is free to fire members of every independent agency, including the Federal Reserve Board. 'That way lies chaos,' lawyer Neal Katyal wrote in a high court filing on behalf of Harris. Defending Trump at the Supreme Court, Solicitor General D. John Sauer told the justices that firing Fed governors was a 'distinct question' that is not presented in this case. Trump has mused about firing Powell and his remark in April that the central bank leader's 'termination cannot come fast enough' caused a stock market selloff. Trump then said he had no plans to fire Powell. The conservative justices appeared to agree, noting that the Federal Reserve 'is a uniquely structured, quasi-private entity.' The immediate issue confronting the court was whether the board members, both initially appointed by Democratic President Joe Biden, can stay in their jobs while the larger fight continues over what to do with a 90-year-old Supreme Court decision known as Humphrey's Executor. In that case from 1935, the court unanimously held that presidents cannot fire independent board members without cause. Kagan wrote that her colleagues were telegraphing what would happen. "The impatience to get on with things—to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go,' she wrote. The New Deal era case led to the creation of many agencies and bolstered others that were run by bipartisan boards that relied on expertise and were, to a degree, independent of presidential control, Kagan wrote. But the ruling has long rankled conservative legal theorists, who argue it wrongly curtails the president's power. Roberts was part of the current conservative majority on the Supreme Court that already has narrowed its reach in a 2020 decision. In its emergency appeal, the administration had suggested the justices should take up and decide the broader issue of presidential power. But the court ignored Sauer's suggestion of a hearing in May, with a decision by early summer, preferring to let the case proceed on its normal path. The U.S. Court of Appeals for the District of Columbia Circuit voted 7-4 to return Wilcox and Harris to their jobs while their cases play out. The action of the full appeals court reversed a judgment from a three-judge panel that had allowed the firings to go forward. The NLRB resolves hundreds of unfair labor practice cases every year. Wilcox was the first Black woman to serve on the NLRB in its 90-year history. She first joined the board in 2021, and the Senate confirmed her in September 2023 to serve a second term, expected to last five years. The other board in the case reviews disputes from federal workers and could be a significant stumbling block as the administration seeks to carry out its workforce cuts. The board members' reinstatement 'causes grave and irreparable harm to the President and to our Constitution's system of separated powers,' Sauer wrote. Harris and Wilcox are removable 'at will' by the president, he wrote. In the lower courts, Wilcox's attorneys said Trump could not fire her without notice, a hearing or identifying any 'neglect of duty or malfeasance in office' on her part. Perhaps foreshadowing the coming confrontation, the lawyers argued that the administration's 'only path to victory' was to persuade the Supreme Court to 'adopt a more expansive view of presidential power.' ___ Associated Press writer Lindsay Whitehurst contributed to this report. Mark Sherman, The Associated Press
