Outside the Beltway

SCOTUS Edges Toward Affirming Unitary Executive Theory

Or does it?

James Joyner · Saturday, May 24, 2025 · 10 comments

The combination of the end-of-academic-year flurry of activities and my wife’s being forced into being at the office all day, every day has limited my blogging of late but I wanted to comment on Thursday’s ruling in Trump v. Wilcox, allowing the President’s firing of NLRB members to go into effect while the case works its way through the system.

Eugene Volokh highlights this from the per curium opinion:

The Government has applied for a stay of orders from the District Court for the District of Columbia enjoining the President’s removal of a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB), respectively. The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.

The application for stay presented to The Chief Justice and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. The stay also reflects our judgment 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. A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.

Finally, respondents Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors or other members of the Federal Open Market Committee. We disagree. The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. See Seila Law footnote 8.

And this from Justice Kagan’s dissent, joined by Justices Sotomayor and Jackson:

For 90 years, Humphrey’s Executor v. United States (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.

The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey’s makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with “the executive power,” the Humphrey’s Court held that Congress has authority, in creating such “quasi-legislative or quasi-judicial” bodies, to “forbid their [members’] removal except for cause.” Indeed, that conclusion “cannot well be doubted.”

The current President believes that Humphrey’s should be either overruled or confined. And he has chosen to act on that belief—really, to take the law into his own hands. Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency—a multi-member, bipartisan commission exercising regulatory power whose governing statute contains a for-cause provision. Yet now the President has discharged, concededly without cause, several such officers, including a member of the NLRB (Gwynne Wilcox) and a member of the MSPB (Cathy Harris). Today, this Court effectively blesses those deeds. I would not. Our Humphrey’s decision remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief.

Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. We consider emergency applications “on a short fuse without benefit of full briefing and oral argument”; and we resolve them without fully (or at all) stating our reasons. It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. And nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.

Under that decision, this case is easy, as the courts below found: The President has no legal right to relief. Congress, by statute, has protected members of the NLRB and MSPB (like Wilcox and Harris) from Presidential removal except for good cause. And, again, Humphrey’s instructs that Congress can do so without offending the Constitution. Just like the agency at issue there (the FTC), the NLRB and MSPB are multi-member bodies of experts, balanced along partisan lines, with “quasi-legislative or quasi-judicial” (not “purely executive”) functions. So both fit securely within the ambit of Humphrey’s—as no one in the history of either agency has ever doubted. That means to fire their members, the President—under existing law—needs good cause, which he admits he does not have. The only way out of that box is to upend Humphrey’s….

Our normal (invariable?) practice is to grant a stay pending appeal only when we decide the applicant is likely to succeed on the merits. But the majority’s order purports not to reach that conclusion. According to the majority, the President may remove without cause officers exercising executive power, “subject to narrow exceptions recognized by our precedents.” The majority will not say the name of the relevant precedent, but one of those “exceptions” of course comes from Humphrey’s.

The question thus becomes: Does Humphrey’s protect the NLRB and MSPB Commissioners? Well, the majority says, those officers likely exercise “considerable executive power”; but whether they fall within “a recognized exception”—i.e., Humphrey’s—is better left for the future. So the majority’s order just restates the question this case raises—despite the need to give a preliminary answer before ordering relief. Unless … unless the majority thinks it has provided a hint. Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that they cannot fall within the Humphrey’s “exception.” But if that is what the majority means, then it has foretold a massive change in the law— reducing Humphrey’s to nothing and depriving members of the NLRB, MSPB, and many other independent agencies of tenure protections. And it has done so on the emergency docket, with little time, scant briefing, and no argument…

[T]he majority [also] reasons that a stay is justified because the interests at stake are lopsided. “[T]he Government,” it declares, “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.” But that statement misapprehends, on both sides, what this case involves.

On the latter side, the relevant interest is not the “wrongfully removed officer[s’],” but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies. Or differently put, the interest at stake is in maintaining Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because not fully controlled by the White House….

And on the former side of the balance, the majority distorts and overstates the interest in preventing Wilcox and Harris from continuing in office. That interest, to begin with, is not “the Government[‘s],” but only the President’s. Congress, after all, is also part of the Government, and (as just noted) its equities lie in preserving the legislation it has enacted to limit removals. And as to the President’s interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise. But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey’s on the merits?

The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go. In valuing so highly—in an emergency posture—the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.

Except apparently for the Federal Reserve…. The Federal Reserve, [the majority] submits, is a “uniquely structured” entity with a “distinct historical tradition”—and it cites for that proposition footnote 8 of this Court’s opinion in Seila Law. But—sorry—footnote 8 provides no support. Its only relevant sentence rejects an argument made in the dissenting opinion “even assuming [that] financial institutions like the Second Bank and Federal Reserve can claim a special historical status.” And so an assumption made to humor a dissent gets turned into some kind of holding. Because one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception). If the idea is to reassure the markets, 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 majority also justifies its stay on the ground that it will “avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.” But that reason, too, gives the ultimate game away. As this case came to us, Wilcox and Harris had been reinstated to their positions, by the combined rulings of the district and appellate courts. So by re-removing them, the majority’s order itself causes disruption—except, of course, if that order presumes or implies that they will be re-removed next Term anyway.}

University of Chicago law professor Will Baude, a former clerk for Chief Justice Roberts, took to the NYT opinion pages to argue, “The Supreme Court Ruled in Favor of Trump. And That Is OK.“

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.

First, the view of a majority of Supreme Court justices that independent agencies are likely unconstitutional is a straightforward application of its most recent precedents. In Seila Law v. Consumer Financial Protection Bureau, the court held that because the Constitution vests all of the executive power in a single person who is accountable to the whole nation — the president — and because it makes the president responsible for executing the laws, the president must have control over other officials who exercise executive power.

In doing so, the court noted that past cases, such as the Humphrey’s Executor precedent, had upheld the independence of multimember agencies that did not exercise significant executive power. But it strongly suggested that this exception was very small, and that it would be hard for modern agencies to qualify. Legal observers have long expected the court to follow this logic and overrule Humphrey’s Executor sooner rather than later. Those who quarrel with this move (including Justice Kagan) disagree with the entire premise of Seila Law and the unitary executive theory. But there is not much new to see here.

The court’s view that agency officials should not keep their offices while the litigation is pending is also on strong precedential ground. Under the unitary executive premise, executive power is not theirs to exercise; it is on loan from the president. More important, even earlier cases that had departed from the unitary executive premise did not allow reinstatement as the remedy. One traditional remedy was back pay. A wrongly fired officer could sue for his salary — this is what happened in the Humphrey’s Executor case. Other cases sought a remedy of blocking particular enforcement actions. But the precedent for judicially ordered reinstatement or retention is shaky at best.

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.

Baude is certainly right that the court has been signaling in this direction for some time. I’m not sure that we should not worry nonetheless.

The Unitary Executive theory is not only logical but obvious on its face. The plain language of Article II makes the President not only the head of the Executive Branch of the government but, functionally, its embodiment. None of the 27 Amendments does anything to change that.

In practice, however, much of what most agencies of government do is exercise Congress’ Article I powers. Most famously, the Enumerated Powers outlined in Section 8:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

As our society has gotten more complex, it has become impossible for Congress to do these tasks at any level of detail. So, they have instead passed broad enabling legislation, delegated rulemaking power to executive branch agencies of its creation, and maintained oversight through various mechanisms. It would be absurd, indeed, for the President to have absolute power over these agencies as it would, in effect, abrogate Congress’ explicit Constitutional authority.

The notion that Congress can’t create agencies to carry out legal functions outside the purview of partisan politics is similarly dubious. They’ve been doing so for more than a century. The distinction between the types of power that the Federal Reserve and NLRB have strikes me as entirely made up.