The Supreme Court cleared the way Thursday for President Trump to fire two Democratic-appointed independent agency leaders, for now, over the dissents of the court’s three liberal justices.
The emergency order lifts a lower decision reinstating the two officials, handing the president a win in his quest to expand control over all aspects of the federal bureaucracy.
But the justices declined the Trump administration’s additional ask to immediately take up the case in full and expedite it so the high court can settle this term whether Trump could fire the two officials.
“That question is better left for resolution after full briefing and argument,” reads the court’s unsigned opinion.
Instead, National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris’s challenge will return to its normal course in the U.S. Court of Appeals for the D.C. Circuit. It leaves both agencies without a quorum required to conduct certain business in the meantime.
“The stay also 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,” the court wrote in its opinion.
It sympathizes with the arguments advanced by Solicitor General D. John Sauer, who warned that the normal process could prevent a final resolution until well into Trump’s White House term.
“Forcing the President to entrust his executive power to respondents for the months or years that it could take the courts to resolve this litigation would manifestly cause irreparable harm to the President and to the separation of powers,” Sauer wrote in court filings.
Many legal observers expect the case will ultimately need to be settled by the Supreme Court, which 90 years ago carved out the ability for Congress to protect some independent agency leaders from being fired without cause.
In recent years, the Supreme Court’s conservatives have limited the carveout. Latching onto those rulings, the Trump administration contends the carveout shouldn’t extend to the NLRB and the MSPB either, and that if the justices disagree, they need to overrule the precedent.
It’s part of an expansionist view of presidential power that asserts the president is due near-total control over the entirety of the executive branch.
In dissent, the court’s three liberals said the majority was effectively allowing Trump to overrule that decision “by fiat” and “favors the President over our precedent.”
“The impatience to get on with things—to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go,” wrote Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
The Trump administration filed its emergency appeal at the Supreme Court after the full D.C. Circuit issued an emergency ruling effectively reinstating Wilcox and Harris until the next stage of the case.
Chief Justice John Roberts had briefly lifted that ruling until the Supreme Court decided the administration’s request.
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