Leah Litman writing for Public Notice:
Last Thursday evening, the Supreme Court all but demolished the legal basis for the independent agencies that are part of the modern administrative state.
In a brisk four paragraphs, only two of which contained any attempt at legal reasoning, the Court’s six Republican justices allowed the president to fire members of the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB) in violation of federal law. The decision highlights the lawlessness of the Court and is likely to further embolden a president who is very keen to place himself above the law.
The Court’s order in Trump v. Wilcox allows the president to violate the federal laws that prohibited him from removing NLRB and MSPB members without cause for doing so. Laws that insulate the heads of multimember commissions such as the NLRB are a common feature of the administrative state. The Supreme Court upheld one such law almost a century ago in Humphrey’s Executor v. Federal Trade Commission, the case that now undergirds modern independent agencies.
It was therefore a little surprising to read the Supreme Court’s order in Wilcox, which permits the president’s statutorily prohibited removal of officers on multi-member commissions, and see no mention of Humphrey’s Executor, the decision upholding statutes that prohibited such removals. Humphrey’s didn’t appear until the dissent.
But this dismissal of important precedents structuring modern society and government has become a hallmark of the Roberts Court. In a decision few years ago, the Court confidently declared that an earlier precedent on the Establishment Clause had been “abandoned.” Did that mean overruled? Unclear, but it at least meant the Court didn’t have to follow it!
Last term, the Court formally overruled the Chevron doctrine that had allows agencies to interpret ambiguous statutes they administer, as the Republican Justices turned tail on a a precedent they had previously embraced. The year before that, the Court announced that the time had come to end affirmative action programs in higher education, as if it was just closing up shop on the precedents upholding such programs.
In Wilcox, the Republican Justices announced a new rule would take the place of Humphrey’s Executor and the statutes that have been built around it. The Court doubled down on a muscular version of the unitary executive theory — the idea that the president, and president alone, possesses all of the executive power, and that such power also gives the president the authority to control anyone else exercising it through the power to remove them.
These same ideas featured prominently in the Court’s catastrophic immunity decision from last summer — one that placed the president above the law when exercising his official duties. Apparently, the last few months haven’t given the justices pause about the expansive version of executive power they adopted in that case.
Read the rest. It’s really good. And unnerving. Litman is an expert on the Roberts Court and I hate to say it but she does not have much faith that they’re going to save us from this nightmare.