The Trump administration went to the Supreme Court Wednesday, asking for the justices to intervene in the case that will likely determine whether independent agencies in the executive branch can continue in their current form — or whether they will be brought fully under President Donald Trump’s sway.
It asked the Court to block the D.C. Circuit’s Monday ruling temporarily reinstating National Labor Relations Board and Merit Systems Protection Board members that Trump fired earlier this year, and to take up the case on the merits.
Newly-minted Solicitor General John Sauer argued that while narrow protections from at-will firing still remain for some independent agencies — encapsulated in the precedential case Humphrey’s Executor — they are so narrow as to not apply to the NLRB and MSPB. And if they do, he added, the precedent should be overturned.
“To the extent Humphrey’s Executor requires upholding tenure protections for agencies such as the NLRB and MSPB, the government intends to ask this Court to hold, after receiving full briefing and argument, that Humphrey’s Executor was wrongly decided, is not entitled to stare decisis effect, and should be overruled,” he wrote.
The push is part of the administration’s quest to solidify the unitary executive, a theory of the Constitution in vogue on the right in which the president has total control over an executive branch staffed not with civil servants, but political allies. Some independent agencies, like the NLRB and MSPB, still have protections from at-will firing — in addition to bipartisan makeups and staggered terms — that insulate them from the whims of the White House. The Supreme Court has steadily hacked away at those protections, leaving only certain agencies with multi-member boards precariously hanging on to that insulation.
The administration spent much of the brief on a previously lesser leg of its argument: That the lower courts wrongly reinstated the fired board members, and that that remedy alone is enough for the government to prevail. As of Monday, the removed board members are back in their roles.
“This Court need not resolve broader questions about Humphrey’s Executor to decide this stay application,” Sauer wrote. “The Court can also grant the application on the narrow, independent ground that the government is likely to show that the district court’s remedies of reinstating agency heads were unlawful.”
He adds that Humphrey’s Executor only allows for back pay as a remedy for unlawfully fired agency members, and that returning them to their posts would be a “substantial extension” of that case.
In some places, the argument stretches thin, including when Sauer laments that Trump’s agenda would be “irreparably harmed” by having to work with agencies that are deadlocked or controlled by Democrats — despite the fact that the current makeup and vacancies on both the NLRB and MSPB would allow Trump, via an entirely Republican Congress, to ensure GOP majorities on both.
If the Court doesn’t grant the stay, Sauer asks for lighting-speed arguments to be held in May.
“The President should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the Administration’s policy objectives for a single day — much less for the months that it would likely take for the courts to resolve this litigation,” he wrote.
Read the application here:
O/T: Trump Caves on Tariffs!! One wonders what the delusional story will be about the “WHY” and how he will spin the face saving excuses. The question is: Which face?? He is more than “two-faced,” so how many faces could be saved?
The Supremes will bow to Trump.
The fix is in and the Sleazy Six will let Trump get another win
And what a brilliant time to bring all the independent agencies fully under the sway of presidents – when the current president is very very likely not only the dumbest and most ignorant but also the most malevolent and most corrupt president we’ve ever had … We’ll be able to see immediately how very well it works to transform a democracy that for almost 250 years had at least some checks on a would-be despot’s power to nearly a full dictatorship in one fell swoop.
We can only hope that the specter of Donny’s stupid cruel infantile, criminally inclined and half-nuts brain constrains a couple people on that court, but recent history sure isn’t providing any guarantees there.
He’s faces enough to get out of the room with his sense of entitlement unscathed. The con man.