The Supreme Court Quietly Green Lights Trumps Coup over Independent Agencies
Another domino falls in the war for democracy, and the Real Law Moms are here with a hug and a download on the harsh reality of yesterday's ruling
Summary:
On May 22, the conservative majority of the Supreme Court granted Donald Trump’s request for a stay in two blockbuster cases: one involving the National Labor Relations Board (NLRB), the other the Merit Systems Protection Board (MSPB). The effect? Gwynne Wilcox and Cathy Harris who are two lawfully appointed officials of two independent agencies are out, for now. Their sin? Being appointed by a prior administration.
If this order stands, it spells a dangerous landscape ahead for so-called independent agencies who are now on the potential chopping block every four years unless their ideals and actions align with those of the administration in charge. Yikes. Let’s break down why this moment is bigger than two firings, what the Court said (and didn’t say), and why Justice Elena Kagan’s dissent should be stapled to the Constitution … or at least blasted on social media.
Background (aka when ‘Independent’ stopped meaning anything)
Wilcox and Harris were both confirmed to fixed-term seats on independent boards. These boards are on the front lines of workers rights. Among other things, the NLRB protects the rights of private-sector workers to unionize and negotiate. The MSPB protects the rights of federal workers from political retaliation and wrongful termination. Both rely on fixed-term appointments to preserve agency independence, professional continuity, and resistance to partisan whiplash every four years.
As for Wilcox and Harris-these Commissioners weren’t acting outside their lane. They weren’t under ethics investigations. They weren’t refusing to do their jobs. But they were appointed by President Biden. And that, apparently, was enough.
Trump fired them. No cause, no process. And, crucially, no “good cause.” That’s legal jargon but it’s very *important* legal jargon in this case and in another case from long ago titled Humphrey’s Executor v. United States (1935).
Humphrey’s Executor established that officials serving on independent boards can’t be removed by the president without cause when Congress weaves that protection into a governing statute. In Humphrey’s the specific statute allowed the president to remove an FTC commissioner only for “inefficiency, neglect of duty, or malfeasance in office,” but FDR fired FTC Commissioner William Humphrey for political and policy disagreements anyway. The Court ruled that the removal violated the FTC Act. That decision established that Congress could create independent agencies whose leaders are protected from at-will presidential removal, creating a separation between executive power and critical independent regulatory functions. That same protection exists in federal statutes today to shield these agencies from political interference.
Why Humphrey’s Matters - A Side-Note on How Baby Laws Become Big Precedents
Law grows over time through a principle called stare decisis, which means courts stand by decisions that came before. All cases start out as baby law, born in a specific case, but they mature in importance and precedental value as the case proceeds through the court system, from district or trial court to appellate or circuit court, sometimes through state supreme courts, until you get to the U.S. Supreme Court. A legal decision is only “binding” on a court when it is handed down from a higher court with authority over the lower court. This principle flows from the hierarchical structure of the judiciary. Decisions from lower courts or sister courts, while interesting and potentially persuasive, aren’t binding. A decision from THE Supreme Court is binding on all courts, including future Supremes. Humphrey’s is law of the land.
Trump did not follow Humphrey’s. He had no reason for firing these commissioners other than his dislike for who appointed them.
They sued. In March, U.S. District Judge Beryl Howell ruled in favor of Wilcox, ruling the firings illegal and citing … you guessed it … Humphrey’s! She reinstated Wilcox to the NLRB. Harris was similarly temporary reinstated to the MSPB. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit later stayed these decisions, allowing the removals to proceed while litigation continued. The full D.C. Circuit then reinstated Howell’s orders and reinstated the officials. Trump appealed to the Supreme Court.
The Court’s Order & the Rise of an Oxymoron: the Politically-Appointed Independent Agency
In a 6–3 decision on the shadow docket, the Supreme Court granted President Trump’s emergency application to stay the district court rulings that had blocked him from removing Wilcox and Harris without good cause. The Court didn’t issue a full opinion-this is what is known as a shadow docket order, a brief procedural ruling issued without oral argument or detailed explanation. But even in its brevity, the message was unmistakable: the Court allowed the president’s removals to stand while the legal challenge plays out. That means the NLRB and MSPB will continue operating without two of their appointed commissioners.
Out the outset, the Court determined that the President was likely to succeed on the merits, reasoning that he may remove any executive officers to whom he delegates his executive power without cause. The stay thus reflects the Court’s “judgment that the Government is likely to show that both the NLRB and the MSPB exercise considerable executive power.” Next, when balancing the harms that each party might face, the Court found: “[The President] suffers a greater irreparable harm from being unable to remove executive officers than respondents suffer from being unable to serve temporarily.”
The Court did not otherwise dig into the merits or explain its reasoning, which is part of what makes this order so very frustrating. Without elaboration, it appears to bless a level of presidential control over independent agencies that runs counter to long-established precedent. And it sure looks like the Court is preparing to revisit and possibly overturn Humphrey’s Executor in some way.
Justice Kagan’s Dissent
Justice Elena Kagan, joined by Justices Sotomayor and Jackson, filed a forceful dissent. She emphasized that this case is not novel or complex—it fits squarely within Humphrey’s. That precedent, she explained, requires “good cause” for removal from independent boards. The president thumbed his nose at that requirement. Justice Kagan called it what it is:
“Today, this Court effectively blesses those deeds.”
But she didn’t stop there. Kagan wrote, “The majority’s order granting the President’s request for a stay is nothing short of extraordinary.” She noted that the president’s removals were “concededly without cause,” and warned that the Court’s action “allows the President to overrule Humphrey’s by fiat, again….”
If this ruling stands, presidents could install loyalists in every so-called “independent” agency, from the NLRB to the Federal Reserve to the Consumer Financial Protection Bureau. Buck-up because the American people could be facing whiplash every four years, where the goals, tone, and enforcement priorities of critical regulatory bodies are set entirely by the occupant of the White House. Even the boards meant to protect whistleblowers and enforce fair labor practices are now hostage to executive whim.
Why This Matters for Real People
These aren’t just administrative turf wars. The NLRB ensures your right to organize. The MSPB ensures you won’t be fired for doing your job under a different president. Without independent leadership, both private and federal workers lose their frontline defense.
What everyday Americans lose is something foundational: stability in our systems and the independence of the oversight boards that were created to protect us. If those systems are reshaped every four years, what’s left is uncertainty.
At the end of the day, we Real Law Moms want what most moms want: a little peace, a little quiet and for people to follow the dang rules! In this case, that means allowing agencies to run with independence in their oversight of America without being yanked around by politics. This decision might seem technical, but it strikes at the heart of all that is at stake in this war on our democracy. If agency leaders can be removed without cause, then the people those agencies protect, everyone from our teachers, nurses, federal employees, and warehouse workers, are a little less protected. That matters. And we’re paying attention. We know you are, too.