In a brief order in Trump v. Wilcox the Supreme Court (6-3) strongly indicated that the President has constitutional power to dismiss officers exercising significant executive power. From the unsigned 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. See 29 U. S. C. §153(a); 5 U. S. C. §1202(d).
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, 591 U. S. 197, 215−218 (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.
The opinion doesn’t mention the 1930s decision in Humphrey’s Executor v. United States, which upheld a statutory for-cause removal provision for members of the Federal Trade Commission (FTC). But the last line quoted above signals where this is going. Humphrey’s Executor relied on the (possibly incorrect) proposition that the FTC did not exercise significant executive power. So Humphrey’s Executor will be limited to its facts — not overruled, but rendered largely meaningless.
Except for the Federal Reserve. Also from the majority:
[R]espondents 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. See Response of Wilcox in Opposition to App. for Stay 2−3, 27−28; Response of Harris in Opposition to App. for Stay 3, 5−6, 16−17, 36, 40. 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, 591 U. S., at 222, n. 8.
This proposition follows from the majority’s implicit distinction of Humphrey’s Executor. If the Federal Reserve exercises something other than executive power, then it is protected by Humphrey’s — and, more importantly, its structure does not contravene Article II, Section 1.
As I’ve discussed earlier (see here) in my view this is likely the correct originalist result.
(And looking forward, the question is not whether the Court will overrule Humphrey’s Executor (it won’t) — it’s whether the Court will overrule Morrison v. Olson and vindicate Scalia’s originalist dissent.)
Via Ed Whelan at Bench Memos, who has additional thoughts.
UDPATE: Will Baude comments in the New York Times: The Supreme Court Ruled in Favor of Trump. And That Is OK. (Via Jonathan Adler at Volokh Conspiracy, who has additional thoughts.)
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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