WASHINGTON, D.C.—Stephen Hall, Legal Director and Securities Specialist, issued the following statement on the Supreme Court’s hasty decision to allow the lawless firing of agency heads before the complex Constitutional issues are fully litigated on the merits, in Trump v. Wilcox, No. 24A966 (S. Ct.):
“In yesterday’s order, the Supreme Court abruptly sided with President Trump’s decision to fire, without any cause, leaders at two important agencies that protect workers’ rights (the MSPB and the NLRB). The Court thus lifted lower court stays on those removals while the case is fully litigated. The Court’s order is wrong on every level. In terms of substance, the Court erred by summarily casting aside a 90-year-old Court precedent, known as Humphrey’s Executor, unanimously holding that Congress can indeed protect members of independent agency boards from removal by the President without cause. That principle clearly applies to the agencies here, the MSPB and the NLRB. In fact, a majority of the judges on the entire D.C. Circuit recently embraced this view in this case. At this point, then, the likelihood of the President’s success on the merits must be regarded as slim, and that factor militates strongly against the Court’s decision.
“The Court also got it wrong as to the balance of harms, another key test when a stay of a lower court order is sought. The Court’s decision inflicts a profound harm by upending Congress’s judgment that the public benefits from independent agencies, headed by experts, who have some protection from removal by the President at his or her whim. On the other hand, there is no credible threat of harm from allowing the two fired board members to remain in their positions pending a final resolution on the merits.
“As to procedure, this decision is another example of the Court’s disposing of extraordinarily consequential matters based on inadequate briefing, no oral argument, and no chance for thoughtful consideration. The two-page opinion, lacking anywhere near an adequate analysis or justification, illustrates the peril of this rushed and abbreviated process. In fact, there was no reason for haste, and the Court should have preserved the status quo by leaving the board members in their positions while the case is properly briefed, argued, and considered by the Court.
“Finally, the Court’s attempt to allay concerns that an unrestrained removal power in the hands of the President will also apply to the Board of Governors of the Federal Reserve just underscores why the stakes are so high: It is imperative that agencies like the MSPB and the NLRB, and especially the Fed, retain the measure of independence from the impulses of the politically motivated executive branch that Congress intended and explicitly established by statute. Respect for that legislative judgment is what best serves the public interest, something missing from the Court’s hasty, opaque, and misguided decision.”
###
Better Markets is a non-profit, non-partisan, and independent organization founded to promote the public interest in the financial markets, support the financial reform of Wall Street and make our financial system work for all Americans again. Better Markets works with allies—including many in finance—to promote pro-market, pro-business and pro-growth policies that help build a stronger, safer financial system that protects and promotes Americans’ jobs, savings, retirements and more. To learn more, visit www.bettermarkets.org.
