DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. GWYNNE A. WILCOX, ET AL.
No. 24A966
SUPREME COURT OF THE UNITED STATES
[May 22, 2025]
605 U. S. ____ (2025)
ON APPLICATION FOR STAY
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
Finally, respondents 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.
The March 4, 2025, order of the United States District Court for the District of Columbia, No. 25−cv−412, ECF Doc. 39, and the March 6, 2025, order of the United States District Court for the District of Columbia, No. 25−cv−334, ECF Doc. 34, are stayed pending the disposition of the appeal in the United States Court of Appeals for the District of Columbia Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. GWYNNE A. WILCOX, ET AL.
No. 24A966
SUPREME COURT OF THE UNITED STATES
[May 22, 2025]
605 U. S. ____ (2025)
KAGAN, J., dissenting
ON APPLICATION FOR STAY
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting from the grant of the application for stay.
For 90 years, Humphrey’s Executor v. United States, 295 U. S. 602 (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others—among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey’s makes clear, creates no conflict with the Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with “the executive power,” the Humphrey’s Court held that Congress has authority, in creating such “quasi-legislative or quasi-judicial” bodies, to “forbid their [members’] removal except for cause.” Id., at 626, 629. Indeed, that conclusion “cannot well be doubted.” Id., at 629; see also Wiener v. United States, 357 U. S. 349 (1958) (reaffirming Humphrey’s).
The current President believes that Humphrey’s should be either overruled or confined. See Application 14; Letter from
Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. We consider emergency applications “on a short fuse without benefit of full briefing and oral argument”; and we resolve them without fully (or at all) stating our reasons. Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief ) (slip op., at 1). It is one thing to grant relief in that way when doing so vindicates established legal rights, which somehow the courts below have disregarded. It is a wholly different thing to skip the usual appellate process when issuing an order that itself changes the law. See, e.g., Netchoice, LLC v. Paxton, 596 U. S. ___, ___ (2022) (ALITO, J., dissenting from grant of application to vacate stay) (slip op., at 2) (demanding that an applicant for relief have a good claim “under existing law”); Merrill v. Milligan, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., dissenting from grant of applications for stays) (slip op., at 1) (same); id., 595 U. S., at ___ (KAGAN, J., dissenting from grant of applications for stays) (slip op., at 1) (same). And nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect—by either overturning or narrowing—one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.
Under that decision, this case is easy, as the courts below found: The President has no legal right to relief. Congress, by statute, has protected members of the NLRB and MSPB (like Wilcox and Harris) from Presidential removal except for good cause. See
For that reason, the majority’s order granting the President’s request for a stay is nothing short of extraordinary. That order consents to the President’s (statutorily barred) removal of the NLRB and
The majority’s explanation of its action unfolds in two parts, neither rising to the occasion.
The first gestures toward the merits, but in a most unusual and unedifying way. Our normal (invariable?) practice is to grant a stay pending appeal only when we decide the applicant is likely to succeed on the merits. See, e.g., Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). But the majority’s order purports not to reach that conclusion. According to the majority, the President may remove without cause officers exercising executive power, “subject to narrow exceptions recognized by our precedents.” Ante, at 1. The majority will not say the name of the relevant precedent, but one of those “exceptions” of course comes from Humphrey’s. See Seila Law, 591 U. S., at 204, 215–217. The question thus becomes: Does Humphrey’s protect the NLRB and MSPB Commissioners? Well, the majority says, those officers likely exercise “considerable executive power”; but whether they fall within “a recognized exception”—i.e., Humphrey’s—is better left for the future. Ante, at 1. So the majority’s order just restates the question this case raises—despite the need to give a preliminary answer before ordering relief. Unless . . . unless the majority thinks it has provided a hint. Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that they cannot fall within the Humphrey’s “exception.” But if that is what the majority means, then it has foretold a massive change in the law—reducing Humphrey’s to nothing and depriving members of the NLRB, MSPB, and many other independent agencies of tenure protections. And it has done so on the emergency docket, with little time, scant briefing, and no argument.
The second part of the majority’s explanation, focusing on what we typically call the balance of equities, in no way compensates for the first’s failures. Here, the majority reasons that a stay is justified because the interests at stake are lopsided. “[T]he Government,” it declares, “faces greater risk of harm from an order allowing a removed officer to continue exercising
On the latter side, the relevant interest is not the “wrongfully removed officer[s’],” but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies. See Wiener, 357 U. S., at 354. Or differently put, the interest at stake is in maintaining Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because not fully controlled by the White House. Even without Humphrey’s, this Court would have to give respect, in balancing equities, to Congress’s expression of that idea in legislation. See Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (Rehnquist, C. J., in chambers) (Acts of Congress “should remain in effect pending a final decision on the merits by this Court”); Walters v. National Assn. of Radiation Survivors, 468 U. S. 1323, 1324 (1984) (Rehnquist, J., in chambers) (“The presumption of constitutionality which attaches to every Act of Congress” is “an equity to be considered” in the stay analysis). And of course the Court is not without Humphrey’s, which already approved the kind of removal restrictions at issue here. Given that decision—and the near-century of administrative practice that has followed—the majority has no excuse for so misidentifying the interest that cuts against unconstrained removal. It is, again, the interest in the NLRB, MSPB, and all their ilk working as Congress intended them to, on the view that a measure of independence would serve the public good.
And on the former side of the balance, the majority distorts and overstates the interest in preventing Wilcox and Harris from continuing in office. That interest, to begin with, is not “the Government[’s],” ante, at 1, but only the President’s. Congress, after all, is also part of the Government, and (as just noted) its equities lie in preserving the legislation it has enacted to limit removals. And as to the President’s interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise. But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey’s on the merits? 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. In valuing so highly—in an emergency posture—the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.*
“To avoid an arbitrary discretion in the courts,” Hamilton wrote, “it is indispensable that they should be bound down by strict rules and precedents.” Federalist No. 78, p. 529 (J. Cooke ed. 1961). Today’s order, however, 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. I would deny the President’s application. I would do so based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history. Respectfully, I dissent.