The Volokh Conspiracy
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What are the Precedential Values of Wilcox and Boyle?
Judge Rao explains how to read emergency docket orders on stay applications.
President Trump removed Federal Trade Commissioner Rebecca Slaughter without cause. The District Court ordered that Slaughter must be reinstated. Today, a divided panel of the D.C. Circuit declined to stay that order. Judges Millett and Pillard found that Wilcox and Boyle did not reverse Humphrey's Executor. As a result, that under-siege precedent controls this case. Judge Rao dissented, and parsed how the lower courts should read emergency docket orders that arise from stay applications.
I do not think this is a case where the D.C. Circuit is overtly defying Wilcox and Boyle, as Justice Gorsuch put it in NIH. Rather, I think the majority and dissent vigorously disagree about how to parse the effect of Wilcox and Boyle on Humphrey's Executor.
The majority opinion explains that Wilcox concerned the NLRB and MSPB and Boyle concerned the CPSC. By contrast, the Supreme Court did not issue any new ruling concerning the FTC. The only precedent on the books for that case is Humphrey's Executor.
In contrast, the present case [Slaughter] involves the exact same agency, the exact same removal provision, and the same exercises of executive power already addressed by the Supreme Court in Humphrey's Executor and subsequent decisions, and so is squarely controlled by that precedent.
I'm not sure that claim is exactly right. The FTC of 1935 is very different from the FTC of 2025. The Commissioners now exercise far more executive power. Judge Rao favorably cites Eli Nachmany's important new paper, The Original FTC. (Query whether Chief Justice Roberts will serve up another blue plate special, and distinguish Humphrey's Executor on the grounds that the members now have more executive power--to paraphrase Shelby County, "history did not end in 1935.")
But let's put aside that factual disagreement. Is it the case that Wilcox and Boyle have no impact on Slaughter? The majority argues that granting the stay would in fact be defying the Supreme Court!
Granting the government's motion would ignore the Supreme Court's stay order in Wilcox, not comply with it. That order said, less than three months ago, that stay decisions by the courts of appeals remain controlled by extant precedent including Humphrey's Executor.
Take that, Justice Gorsuch!
Judge Rao approached this issue from a completely different angle. Indeed, she provides a careful analysis of how lower-court judges should read orders from the emergency docket. The majority opinion does not respond to Judge Rao. They should start thinking of a response, because this approach very well may make it into a future Supreme Court decision.
Wilcox and Boyle did not simply decide that Trump had the power to remove members from certain boards. Rather, the Court stated how to resolve emergency applications to stay reinstatement to those boards. In short, the Court held that because these members exercise "significant executive power," the equities favor staying the injunctions. Here is the key paragraph from Judge Rao:
While it is true the removed officer here is a commissioner of the Federal Trade Commission, and the Supreme Court upheld the removal restriction for such commissioners in Humphrey's Executor v. United States, 295 U.S. 602 (1935), a stay is nonetheless appropriate. The Commission unquestionably exercises significant executive power, and the other equities favor the government. These grounds were sufficient to support the Supreme Court's judgment that a stay was warranted in two recent cases in which the district court ordered reinstatement of an officer removed by the President. The Court determined that "the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty." Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025); see also Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025). Because we are required to exercise our equitable discretion in accordance with the Court's directives, the district court's order must be stayed. I respectfully dissent.
Judge Rao writes later:
Granting a stay of the district court's injunction, however, does not require this court to claim that Humphrey's Executor has been overruled. Instead, the stay is warranted by the Supreme Court's decisions to stay injunctions ordering the reinstatement of removed officers.
As I read Judge Rao, Wilcox and Boyle are not precedents for some future motion for summary judgment. Rather, these precedents explain how to handle emergency stay applications concerning reinstatement. Specifically, the Supreme Court has instructed the lower courts of how to balance equities in the case of a reinstatement.
In the stay posture, the Supreme Court has withheld judgment on the lawfulness of the President's removals of so called independent agency heads, focusing instead on the harm to the government from reinstatement. That reasoning similarly requires a stay here while the merits of the removal, and the ongoing validity of Humphrey's Executor, continue to be litigated.
Judge Rao explains:
And finally, we need not definitively determine whether Slaughter's removal was lawful, because we must follow the Supreme Court's conclusion that an injunction reinstating an officer the President has removed harms the government by intruding on the President's power and responsibility over the Executive Branch.
The en banc D.C. Circuit previously held that reinstatement was appropriate. Judge Rao contends that Wilcox and Boyle overruled (or at least abrogated) the en banc precedent.
My colleagues inexplicably stick to this court's en banc decision in Harris v. Bessent, which denied a motion to stay a similar reinstatement injunction. Order at 10 n.1 (citing Harris v. Bessent, No. 25-5037, 2025 WL 1021435, at *2 (D.C. Cir. Apr. 7, 2025) (en banc) (per curiam)). But the en banc court was reversed by the Supreme Court, which granted a stay of the injunction. Wilcox, 145 S. Ct. at 1415. I see no reason to follow overruled circuit precedent rather than Wilcox and longstanding Supreme Court precedent.
This is a very sophisticated approach to parsing emergency docket precedents. Unlike some judges who apparently did not know that emergency docket orders are precedential, Judge Rao is sketching out in what ways these orders are precedential. I think this opinion reinforces Justice Kavanaugh's Boyle concurrence. I like when Judges explain why they are doing what they are doing.
