To hear DC Circuit Court Judge Justin Walker tell it, the Supreme Court basically already axed the last vestige of independent executive branch agency protections — it just did so very quietly.
Walker, a Trump appointee, with Judge Karen Henderson, a Bush appointee, on Friday allowed President Trump’s firings of board members at the National Labor Relations Board and Merit Systems Protection Board to stand, despite clear Supreme Court precedent making those firings unlawful. The Trump Justice Department has said as much, acknowledging that the firings aren’t legal under current law, but maintaining that the law is unconstitutional. The administration is aiming to get the cases to the Supreme Court, betting that the right-wing majority is prepared to overturn Humphrey’s Executor, the 1935 precedent that has become the bastion of protection for independent, multi-member agencies like the NLRB and MSPB.
Judge Patricia Millett, an Obama appointee, wrote a scathing dissent to Friday’s order.
“After omitting what the Supreme Court actually said about Humphrey’s Executor in Free Enterprise, Seila Law, and Collins, Judge Walker discerns a clarity that everyone else has missed, announcing that the Supreme Court has imposed ‘a binding command on the lower courts’ not to extend Humphrey’s Executor to ‘any new contexts,’ so that this court ‘cannot extend Humphrey’s — not even an inch,’” she wrote.
She lambasted Walker for presuming “to do the Supreme Court’s job for it,” preemptively overturning the precedent which should still bind the lower courts.
Walker traced the Court’s history of hacking away independent agency protections, claiming that the remaining guardrails had been so narrowed as to be inapplicable to modern-day agencies.
“Text, history, and precedent are clear: The Constitution vests the ‘entire “executive Power”’ in the President,” he wrote, articulating the central belief of the once fringe right-wing unitary executive theory that has since landed adherents on the Supreme Court, and has been aggressively championed by the Trump administration.
The only exception to that power, he wrote, are agencies that do not exercise executive power, which he quickly put to bed with a tautology: “For a court to conclude that an executive agency wields substantial executive power, it need not assemble a fact intensive catalog of the agency’s executive functions. The default: Executive agencies exercise executive power.”
He hand waved that Humphrey’s Executor was akin to a “benched quarterback” “mostly ignored in recent years by Supreme Court majorities.”
Henderson, while less strident than Walker, agreed in a concurring opinion that the government was likely to prevail on the merits in its crusade against removal protections for board members of independent agencies.
The ruling means that, for now, the firings at the agencies can stand. Millett pointed out that the removals could deprive the agencies of the quorums they need to fully operate for the long term, should Trump decline to nominate replacements.
These agency firings are part of the bigger Trump/Elon Musk project of razing the federal government, shuttering agencies and chasing out civil servants in favor of an all-powerful president free to stock the government with partisan appointees. Walker, Millett wrote angrily, used his opinion to try to advance that vision.
“Judge Walker claims that the MSPB wields executive power because ‘it can force the President to work with thousands of employees he doesn’t want to work with,’” she wrote. “The assertion that the President could fire every single employee in the Executive Branch, as opposed to principal officers, is a breathtaking broadside on the very existence of a civil service that not even the government advances.”
Experts told TPM that they expect the Trump administration to ultimately win its cases challenging agency independence at the Supreme Court, removing one of the last protections for these entities and putting a whole host of them — including the Federal Reserve — at acute risk of partisan takeover. The Trump administration, expecting that outcome too, got a happy surprise Friday, winning at a court supposedly bound by the precedent it’s gunning to overturn.
Read the ruling here:
Why wouldn’t a political party plan and execute a complete control of every entity? And, in a world of billionaires, why wouldn’t the 1% just outright buy ownership of the government? Why should we presume that the person who wields total power will be a good person?
The idea that the president will just dabble in an agency here and there – though basically letting it do what he doesn’t want it to do – is utter nonsense.
This makes it all the more noteworthy that Henderson went the other way in the deportations case.
The NLRB will now become death trap for union organizing. I wonder if Trump’s pal, Teamster president Sean O’Brien, has any regrets about his swooning over the GOP last fall.
Harris’s attorney says they will seek a rehearing en banc. But SCOTUS would likely grant cert if they were to prevail before the full DC Cir.
Spoil System, here we come. Noting that a system where Government employees are all political appointees who every 4 years will need to find a new job, corruption will be, as it was before we had Civil Service, dominant. Which is for Republicans, what they want.
Trump is turning the clock back 150 years to when Government was for sale and over 90% of people lived below the poverty line.