The constitutional question at issue is straightforward: the power of Congress to constrain the president’s power to remove executive branch officials.

If you’re focused on the Supreme Court’s regular docket this term, you are missing a lot of the action. The Court’s list of potentially major opinions is short, and it got shorter this morning when an evenly divided Court punted on the Oklahoma Catholic charter school case.

But the Court has been plenty busy dealing with emergency applications in cases involving the Trump administration, especially in the areas of deportations and the struggle to regain presidential control of the executive branch. Perhaps predictably, Donald Trump has been winning more on the latter front.

This afternoon, the Court ordered in Trump v. Wilcox that it would allow Trump to remove a member of the National Labor Relations Board (NLRB) and a member of the Merit Systems Protection Board (MSPB) while their lawsuits challenging the removals were pending. The Court thus stayed a pair of D.C. federal district court orders issued by judges Beryl Howell and Rudy Contreras, both Barack Obama appointees. This follows a seesaw in which the orders were stayed by a panel of the D.C. Circuit and then reinstated by the en banc D.C. Circuit.

The constitutional question at issue is straightforward and long-contested: the power of Congress to constrain the president’s power to remove executive branch officials. As the Court’s four-paragraph order notes, Trump can’t do this without violating statutes that allow him to remove NLRB and MSPB members only for cause. He did it anyway, and the Court seems ready to back him up — or at least prevent courts from interfering in those executive decisions unless and until they have reached a conclusion after full litigation of the issue that the president has acted outside of his powers:

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. . . . The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument. 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. . . . A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation. [Emphasis added]

As Ed Whelan perceptively notes, this finally places on its deathbed one of Justice Antonin Scalia’s longest-standing targets, the Court’s “1935 ruling in Humphrey’s Executor v. United States, which approved restrictions on the president’s power to remove members of the Federal Trade Commission.” Scalia’s philosophical argument, which he shared with the Framers of the Constitution, was that the president is solely charged with both constitutional responsibility and political accountability for all of the executive power of the United States, which is vested solely in the executive branch and solely in the person of the president. He therefore cannot be asked to exercise that power through delegated officers that he does not trust or wish to employ. Scalia hasn’t finally won the argument, but six members of the Court today came pretty close to awarding him the victory that so long eluded him.

The writing has been on the wall since the Court’s 2020 opinion in Seila Law LLC v. Consumer Financial Protection Bureau, which the Court cited today, although Chief Justice John Roberts at the time limited the remedies it provided for concluding that Congress in the 2010 Dodd-Frank Act had violated the separation of powers by placing the head of the Consumer Financial Protection Bureau beyond the reach of presidents to remove at will. Roberts, under fire from Trumpland for his prickly insistence on due process of law, seems ready at last to follow the logic of his own prior opinions on executive power to give Trump a win.

It wouldn’t be a Roberts special without some dubiously principled efforts to avoid drawing radical conclusions from his own premises, so today’s opinion tries to build a firewall around the Federal Reserve: “respondents . . . 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. . . . 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.” [Emphasis added] Take that, Andrew Jackson! Take that, James Madison (who in the end grudgingly reauthorized the Second Bank of the United States). In this house, Alexander Hamilton is still a hero! End of story.

Justice Elena Kagan, joined by the two other liberals, called out what the Court was really doing, and how thin is its rationale for exempting the Fed. But in the end, if she’s right on the day’s news cycle, she’s wrong about the Constitution.