


It is a sign of the times that the Supreme Court may have just used its emergency docket to all but overrule an important precedent limiting executive power. That precedent is Humphrey’s Executor, a New Deal-era case establishing the constitutionality of independent agencies.
In a surprising twist, its decision to do so was both predictable and reasonable.
The cases before the court were Trump v. Wilcox and Harris v. Bessent, which concern the president’s power to fire members of the National Labor Relations Board and the Merit Systems Protection Board without showing just cause to do so. Because these boards were created by Congress as independent agencies, the cases will ultimately test whether Congress can create such agencies, or whether the unitary executive theory instead requires them to be under complete presidential control.
After lower courts held that the firings were unlawful and that the agency officials should retain (or regain) their offices, the Supreme Court ruled in favor of President Trump.
We have plenty of things to worry about in constitutional law today. But those worried about how the court will confront the unprecedented and sometimes unlawful actions of the Trump administration should save their outrage for other cases.
In the two cases here, the court held that the president was likely to prevail in his unitary executive claim, that the administration was unduly harmed by allowing the officials to keep their offices while the case was pending, and that this reasoning would not imperil the independence of the Federal Reserve. It did all of this in an emergency order, rather than waiting for the issues to arrive on the court’s regular docket.
All four of these things are noteworthy and provoked a powerful dissent by Justice Elena Kagan. But in this particular case, all four can be justified.