SCOTUS Allows Trump to Remove the Heads of Independent Agencies

The Supreme Court has ordered a stay that halts the reinstatement of Gwynne Wilcox to the National Labor Relations Board (NLRB) and Cathy Harris to the Merit Systems Protection Board (MSPB), following President Donald Trump's attempt to fire them without cause. These two agencies are pivotal to forming policy on worker’s rights in both the private and public sector, as such the heads of each agency will be extremely influential moving forward.

Order Details and Background

The order, issued on May 22, 2025, responds to an application for a stay filed by President Trump. It stays two district court orders:

• The March 4, 2025, order in Wilcox v. Trump from the U.S. District Court for the District of Columbia.

• The March 6, 2025, order in Harris v. Bessent from the same court.

These district court rulings had reinstated Wilcox and Harris to their positions after Trump fired them, asserting that the for-cause removal provisions under the National Labor Relations Act and related statutes were unconstitutional. The Supreme Court's stay means that Wilcox and Harris remain out of office pending further legal proceedings, specifically:

• The disposition of the appeal in the U.S. Court of Appeals for the District of Columbia Circuit.

• Any potential petition for a writ of certiorari to the Supreme Court. If certiorari is denied, the stay terminates automatically; if granted, it ends upon the issuance of the Supreme Court's judgment.

This procedural step is part of the Court's "shadow docket," where emergency applications are handled with limited briefing and often without oral argument, reflecting the expedited nature of such decisions.

Underlying Legal Issue: Unitary Executive Theory

The case centers on the "unitary executive" theory, which posits that the President should have complete control over executive branch officials, including the power to fire them at will. Trump argues that the for-cause removal protections for NLRB and MSPB members violate this principle, citing the Supreme Court's 2020 decision in Seila Law LLC v. CFPB, which held that the Consumer Financial Protection Bureau's single-director structure with for-cause removal was unconstitutional. This case challenges similar protections, potentially threatening the independence of these agencies and raising questions about whether the Court will revisit its 1935 decision in Humphrey's Executor v. United States, which upheld for-cause removal for the commissioners of the Federal Trade Commission .

This case will have wide ranging implications beyond who will lead the two employment-related agencies. If the Supreme Court were to embrace the Trump Administration’s constitutional analysis, any member of the executive branch could be terminated by the President at-will, without cause, invalidating a number of statutes creating independent agencies. This would allow the Trump Administration to work faster towards creating their vision for the nation, but may also create a backlog of appointments and lack of continuity if not managed properly. 

Procedural History and Prior Actions

The procedural history of Trump v. Wilcox and Harris v. Bessent illustrates the rapid escalation of this dispute:

• In January 2025, Trump fired Wilcox from the NLRB and Harris from the MSPB, marking him as the first President to attempt such removals, according to legal briefs.

• The district courts ruled in favor of reinstatement in March 2025, leading to appeals.

• On April 9, 2025, Chief Justice John Roberts issued an administrative stay, temporarily halting the reinstatements pending further Supreme Court action.

• The final order on May 22, 2025, formalizes this stay, aligning with the Court's practice of issuing such orders on Thursdays for emergency applications.

This timeline reflects the urgency and high stakes, with multiple court levels involved in a short period, underscoring the case's political and legal significance.

The Order’s Reasoning

The majority’s order hinges on the principle that the Constitution’s vesting of executive power in the President (Article II, Section 1, Clause 1) generally allows removal of executive officers without cause, except in narrow circumstances recognized by prior cases, such as Seila Law LLC v. Consumer Financial Protection Bureau (2020). The Court suggested that the government is likely to demonstrate that the NLRB and MSPB exercise “considerable executive power,” potentially placing them outside the protections of Humphrey’s Executor. However, the majority stopped short of definitively resolving whether these agencies fall within an exception, deferring that question for full briefing and argument in a future proceeding.

In justifying the stay, the Court emphasized the balance of equities, asserting that the government faces greater harm if removed officers continue to wield executive power than the officers face from being temporarily barred from their duties. The majority also cited the need to avoid the “disruptive effect” of repeated removals and reinstatements during ongoing litigation. The stay will remain in effect pending the outcome of appeals in the D.C. Circuit and any potential Supreme Court review. If certiorari is denied, the stay will end automatically; if granted, it will persist until the Court issues a final judgment.

The order also addressed concerns raised by Wilcox and Harris that the case could affect the Federal Reserve’s for-cause removal protections. The majority dismissed this, describing the Federal Reserve as a “uniquely structured, quasi-private entity” with a distinct historical tradition, rooted in the legacy of the First and Second Banks of the United States, as noted in a footnote from Seila Law. This distinction aims to reassure markets that the Federal Reserve’s independence remains unaffected, though Justice Kagan’s dissent challenges its logic.

Dissent and Controversy

Justice Kagan, joined by Justices Sotomayor and Jackson, dissented from the Supreme Court's decision to grant the stay. Her dissent argues:

1. Humphrey’s Executor Precedent: For 90 years, Humphrey’s Executor v. United States (1935) has upheld Congress’s authority to create independent, bipartisan agencies like the NLRB and MSPB, with members protected from removal without cause. This precedent supports the agencies’ structure to ensure decisions serve the public good, not presidential whims.

2. Presidential Overreach: Kagan criticizes the President for disregarding Humphrey’s by firing agency members without cause, an action not seen since the 1950s. She argues the Court’s stay effectively endorses this violation of established law.

3. Misuse of Emergency Docket: The dissent contends that the Court’s emergency docket, lacking full briefing or argument, is inappropriate for altering longstanding precedent like Humphrey’s. Kagan emphasizes that lower courts consistently upheld Humphrey’s, and the President must follow it unless the Court overrules it through proper process.

4. Merits and Equities: Kagan disputes the majority’s reasoning. On the merits, she asserts Humphrey’s clearly protects NLRB and MSPB members, as they perform quasi-legislative or quasi-judicial functions, not purely executive ones. On equities, she argues the majority undervalues Congress’s interest in independent agencies and overstates the President’s need to remove officers immediately, ignoring decades of presidents respecting such restrictions.

5. Federal Reserve Exception: Kagan questions the majority’s carve-out for the Federal Reserve, noting its independence relies on the same principles as other agencies under Humphrey’s. She argues the majority’s attempt to distinguish it lacks support and suggests an intent to undermine Humphrey’s broadly.

Kagan concludes that the stay disrespects Congress’s will, Humphrey’s, and 90 years of practice, predicting it foreshadows an intent to overturn the precedent. She would have denied the stay, preserving the agency heads’ reinstatement.

Implications and Public Interest

This order has sparked significant public and legal interest, given its implications for presidential authority and the independence of federal agencies. The case's outcome could reshape how independent agencies function, affecting labor rights, federal employee protections, and the broader separation of powers doctrine.

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