The Volokh Conspiracy
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Baude on Trump v. Wilcox: "Predictable and Reasonable"
A defense of the Supreme Court's decision to let President Trump remove members of the NLRB and MSPB.
Yesterday, by a vote of 6-3, the Supreme Court stayed district court orders blocking President Trump from removing members of the Gwynne Wilcox from the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. As I noted before, this case targeted Humphrey's Executor and had the potential to effectively eliminate independent regulatory agencies as a category.
In today' New York Times, Will Baude has an op-ed largely defending the Court's order as both "predictable and reasonable" that largely captures my views on the subject (thus freeing me from writing a longer blog post on the case). He writes:
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.
It was reasonable for the Court to conclude that the NLRB and MSPB are more like the Consumer Financial Protection Board than they are like the 1930s Federal Trade Commission, and thus limitations on presidential removal of board members conflicted with Seila Law and should not be saved by Humphrey's Executor. Indeed, it is not clear the current FTC would qualify. The "quasi-legislative" functions of the FTC the Court considered important in Humphrey's were the FTC's responsibilities for assisting and informing Congress, not promulgating regulations.
But what about the Federal Reserve? Baude writes:
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.
I would go a little further and note that all the Court said in its order is that allowing the removal of NLRB and MSPB members does not "necessarily" mean that members of the Federal Reserve Board are also removable. It is simply a separate question, and it may well be the case that the Fed's primary responsibilities (monetary policy) can be insulated from executive control, whereas some of its regulatory functions cannot. Those are all questions courts can sort out another day.
More Baude:
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.
That seems right to me.
