Supreme Court Kills The Independent Agency. Trump Is King

The Supreme Court majority all but declared Thursday that it is ready to overturn a nearly century-old precedent meant to protect independent agencies from at-will firing by the President. 

It’s the last brick to fall in the division between the President and the parts of the executive branch Congress created to be beyond his reach, turning the second branch of government into an all-powerful tool to be wielded by one man. 

Justice Elena Kagan, writing for the three dissenting liberals, dispensed with the usual niceties to upbraid her conservative colleagues for bending to President Trump’s whims, and doing so in a two-page ruling on the emergency docket. 

The case stems from Trump’s firing of members of the National Labor Relations Board and Merit Systems Protection Board, which he did knowing that it ran afoul of a 1935 Supreme Court precedent called Humphrey’s Executor. The administration has aimed to get the case before the Court, betting that there are finally enough conservative justices bought into the idea of a supreme presidency to let him axe the last wall protecting critical independent executive branch agencies. On Thursday, the Court overruled the lower courts that had reversed Trump’s firings in accordance with that Supreme Court precedent, hinting that the two agencies may not be protected from at-will removal.

“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,” Kagan thundered, anticipating a future, final decision after the Court hears arguments on the merits. 

In another sign of where the majority is leaning, it mentioned, out of the blue, that the Federal Reserve, for some reason, is uniquely protected from the President’s whims due to its “unique structure” and “distinct historical tradition.” Experts have told TPM over the last few months that their only hope for the survival of independent agencies amid this onslaught from the administration is the right-wing justices’ concern about Trump taking over the Federal Reserve, installing loyalists who would send the global economy into a tailspin. But the Court is telegraphing that it will find a way, no matter how legally flimsy, to silo the Fed out of its coming deathblow to independent agencies. 

“But then, today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on — which is to say it rests largely on Humphrey’s,” Kagan wrote, citing the Court’s precedent protecting these members from at-will removal. “So the majority has to offer a different story…”

“One way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception),” she added. “If the idea is to reassure the markets, a simpler — and more judicial — approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s.” 

The majority further tipped its hand, she pointed out, by rationalizing granting Trump’s stay request by saying that it would stop the members of the two embattled agencies from being fired and rehired as the litigation proceeds. But Kagan notes that the two lower courts, as they must while Humphrey’s Executor still stands, reinstated the fired members. To allow the firings to stand, she wrote, is allowing the “President to overrule Humphrey’s by fiat.”

She also thwacked her colleagues for their explanation of the balance of injuries, noting that the side of the agencies does not boil down to the fired members’ interest in keeping their “nifty jobs” but the interest of Congress to create agencies that the President cannot destroy.

This case will bring the right-wing legal world closer than it ever could have imagined to a unitary executive, a previously unconceivably muscular presidency where the occupant of the Oval Office can reshape the entire executive branch in his image. Coupled with the Trump administration’s annihilation of the civil service, the executive branch will become something much closer to a fiefdom, an extension of presidential power with few institutional guardrails. This was a guiding light of Project 2025, a plan realized in the aftermath of the first administration, when civil servants and non-toadies in the executive branch proved frustrating obstacles to Trump’s vision.  

“Today’s order,” Kagan wrote, “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.”

“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.”

Read the ruling here: