The Supreme Court backed President Donald Trump’s power to fire independent federal agency members over dissent from the court’s three Democratic appointees, who said the majority “favors the President over our precedent.”
The majority on Thursday highlighted the president’s executive power and said he can “remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.” The majority formally halted lower court orders against the government while litigation continues on the subject, with the majority saying that the government is likely to succeed in this case involving the National Labor Relations Board and the Merit Systems Protection Board, but that the court isn’t making an ultimate determination now.
In its emergency application April 9, the Trump administration said a question of “profound importance” is at stake: “whether the President can supervise and control agency heads who exercise vast executive power on the President’s behalf, or whether Congress may insulate those agency heads from presidential control by preventing the President from removing them at will.”
The appeal implicates the Humphrey’s Executor precedent, which has long protected agency independence, something that the high court has weakened in recent years. The 1935 Supreme Court ruling was called out in Project 2025, the conservative blueprint that Trump tried to distance himself from during the 2024 campaign. His administration has taken the position that it’s prepared to ask the justices to overturn the precedent. Doing so would accomplish a Republican-aligned goal of a more powerful president generally, while further consolidating Trump’s power in the short term.
In her dissent for the court’s three Democratic appointees, Justice Elena Kagan cited the Humphrey’s precedent in writing that it “remains good law” and “forecloses both the President’s firings and the Court’s decision to award emergency relief.” She called Thursday’s order “nothing short of extraordinary” by letting Trump “overrule Humphrey’s by fiat.” She said the majority “favors the President over our precedent.”
Kagan also took aim at the majority going out of its way to shield the Federal Reserve. The majority said in its order that the Fed is “a uniquely structured, quasi-private entity,” signaling that it intends to protect the Fed’s independence in considering the broader issue of presidential firing power.
This case doesn’t involve the Fed directly, but Trump’s effort to overturn Humphrey’s Executor raised concerns of potential economic instability on that front specifically. Kagan said in her dissent that that protection came “out of the blue” and that she’s “glad to hear it,” adding that she doesn’t doubt “the majority’s intention to avoid imperiling the Fed.” Yet she added that Thursday’s order from the majority then “poses a puzzle” because the Fed’s independence, she wrote in listing other agencies, “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.”
She said that if the court wanted to reassure the markets, then “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 two people at the center of this appeal are Gwynne Wilcox of the National Labor Relations Board and Cathy Harris of the Merit Systems Protection Board. Litigation over their firings and reinstatement has gone back and forth in the courts, with a divided federal appeals court in Washington, D.C., siding with them April 7, over dissent from Republican-appointed judges. Quickly freezing their win, Chief Justice John Roberts temporarily halted their reinstatement on the same day the administration filed its application, pending further word from the court, which came Thursday. In her opposition high court filing, Harris’ lawyers wrote that the government is in a rush to reverse “a century of practice and precedent.” Citing “immediate consequences” to doing so for institutions ranging from the Federal Reserve to the National Transportation Safety Board, they wrote that even if this court wanted to upend precedent, “a blitzkrieg-to-judgment is not the way to go about it.” They urged the court to reject the government’s bid to intervene now and instead to let the case proceed on a more normal timeline in the lower court. Likewise, lawyers for Wilcox wrote that the “better course is restraint” in the face of the government’s request to “jettison a century of settled interbranch practice.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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