Humphrey's Executor in Danger

Many posts have discussed regulation and the administrative state. 

Amy Howe at SCOTUSBlog:

The Supreme Court on Thursday granted the Trump administration’s request to pause orders by federal judges that required government officials to allow board members at two independent federal agencies to stay in office after President Donald Trump tried to fire them. Chief Justice John Roberts had already issued an administrative stay, which temporarily put those orders on hold to give the justices time to consider the government’s request, so Thursday’s order extends that hold while the litigation continues in a federal appeals court and, if necessary, the Supreme Court.

In an unsigned two-page order, the court explained that the decision to put the lower courts’ orders on hold “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.”

Justice Elena Kagan dissented from the court’s order, in an eight-page opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Calling the order “nothing short of extraordinary,” Kagan would have turned down the Trump administration’s request.
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In her dissent, Kagan emphasized that Humphrey’s Executor “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” Because it “remains good law,” it also, she wrote, “forecloses both the President’s firings” of Harris and Wilcox and the majority’s “decision to award emergency relief.” Kagan contended that “the order allows the President to overrule Humphrey’s by fiat, again pending our eventual review.”

Kagan complained that the majority’s order “favors the President over our precedent; and it does so unrestrained by the rules of briefing and argument—and the passage of time—needed to discipline our decision-making.”


Posted in Emergency appeals and applications, Featured


Cases: Trump v. Wilcox