Yesterday, by a vote of 6-3, the Supreme Court stayed district court orders blocking President Trump from removing members of the Gwynne Wilcox from the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. As I noted before, this case targeted Humphrey's Executor and had the potential to effectively eliminate independent regulatory agencies as a category.
In today' New York Times, Will Baude has an op-ed largely defending the Court's order as both "predictable and reasonable" that largely captures my views on the subject (thus freeing me from writing a longer blog post on the case). He writes:
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.
