SCOTUS Severely Undercuts Humphrey's Executor, Its Own Authority, and Constitutional Democracy
On Thursday of last week, the Supreme Court used a shadow docket case--Trump v. Wilcox--to effectively overrule Humphrey's Executor v. United States--the one-hundred-year-old precedent that upheld the power of Congress to create federal agencies headed by commissioners who serve for fixed terms and cannot be fired by the president except for good cause. I say the Court "effectively" overruled Humphrey's because it did not officially do so. Officially, the Court said only that the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB)--the independent agencies at issue in Wilcox--do not fit into any "narrow exceptions" to presidential at-will removal power.
However, as Justice Kagan (joined by Justices Sotomayor and Jackson) demonstrated in dissent, there is no plausible way to read the majority's action and brief opinion except as strongly signaling an intention to deliver the coup de grâce to Humphrey's at some later point, perhaps in a subsequent incarnation of this case itself. There are no salient distinctions between the NRLB and MSPB, on one hand, and the Federal Trade Commission (FTC) at issue in Humphrey's. I could imagine the Court leaving Humphrey's on the books for some time as a hollow shell, but the clear impact of Wilcox is to vindicate a robust version of the unitary executive theory in which independent agencies created by Congress are nearly all unconstitutional.
The good news ("less bad" news would be more accurate) is that the majority announced an arbitrary exception to its holding that officers exercising significant executive power must serve at the pleasure of the president. Citing what Justice Kagan showed is an irrelevant footnote in an earlier case, the Court said that the new rule of law it denies it was creating by overruling (without admitting to overruling) Humphrey's need not license the Arsonist-in-Chief to undercut central bank independence by firing members of the Federal Reserve Board.
Why not? Because . . . reasons! Or, as the Supreme Court majority put it: "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." It's reassuring to know that the Court wants to preserve Fed independence, even if through a bogus historical tradition that has no relevant normative force anyway.
Justice Kagan's dissent criticizes the Court for effectively overruling Humphrey's on the emergency docket. After all, under the principle announced in Rodriguez de Quijas v. Shearson/American Express, Inc. (1989), lower federal courts (and state courts) are supposed to follow Supreme Court precedents unless and until the Supreme Court itself overrules those precedents. That's what the lower courts did here. They faithfully applied Humphrey's.
The majority didn't deign to answer Justice Kagan's procedural objection. If it had, I suppose it could have said that it was not reversing the lower courts for their failure to anticipate the Supreme Court's overruling Humphrey's because it hasn't overruled Humphrey's. Rather, this pathetic rationalization goes, the lower courts erred by failing to recognize that Humphrey's establishes only a narrow exception to at-will presidential removal power of executive officials into which the NLRB and MSPB don't fit. That would be extremely unpersuasive, however, because, as noted above, those agencies are logically indistinguishable from the FTC.
More fundamentally, an exception to the Rodriguez de Quijas principle for cases in which a lower court can concoct a distinction without a difference between the precedent case and the case before it fatally undermines the Rodriguez de Quijas principle itself. To be sure, one might think that the Rodriguez de Quijas principle is misguided. But it's difficult to believe that this Supreme Court--so active on its emergency docket micro-managing the lower federal courts--wants to give those courts a powerful tool to circumvent its precedents.
It thus appears that, in its zeal to overrule Humphrey's, the Court has undermined its own authority.
But perhaps that appearance is misleading. Perhaps Rodriguez de Quijas remains the rule for precedents the Supreme Court approves of, just not those it wishes to see overruled. On that score, the litigation over Texas S. B. 8 that culminated in Whole Woman's Health v. Jackson is instructive.
Recall that S. B. 8 is the Texas law that eliminates public enforcement of Texas's ban on abortions after roughly six weeks of pregnancy. Nearly a year before the Supreme Court eliminated the constitutional right to abortion, Texas enacted a law that was clearly unconstitutional under the precedent then on the books and provided for ruinous liability via private enforcement so as effectively to prevent doctors and patients from challenging the law. In WWH v. Jackson, the Supreme Court allowed a limited class of challenges to S. B. 8, but these did not materialize because the Fifth Circuit then certified a question to the Texas Supreme Court, which construed S. B. 8 to preclude even those challenges.
The S. B. 8 litigation is not an exact parallel to the Wilcox case. The Fifth Circuit did not provide relief to the plaintiffs, but it didn't do so because it thought it had the power to anticipatorily overrule the Supreme Court's abortion precedents. Rather, it based its decision to stay proceedings in the district court on the conclusion that S. B. 8 was not subject to public enforcement and thus no proper defendant could be enjoined. That decision was partially reversed by the Supreme Court after expedited briefing and oral argument--but not so expedited that S. B. 8 wasn't in effect for three months before the Court ruled. SCOTUS denied interim relief, thus allowing, as Justice Sotomayor (joined by Justices Breyer and Kagan) said in partial dissent, the "Texas Legislature [to] substantially suspend[] a constitutional guarantee . . . ."
The Supreme Court's approach in the S. B. 8 litigation allowed a state to get away with anticipatorily overruling Roe v. Wade and Planned Parenthood v. Casey, presumably because, with the Dobbs case already on the docket, the majority intended to overrule those cases itself. The Supreme Court's approach in Wilcox went so far as to reverse lower federal courts for following the practice that the Supreme Court itself has insisted they follow--waiting for the Court itself to overrule (or narrow down to next to nothing) its old precedents.
In addition, the Wilcox approach allows, indeed invites, presidents to violate laws that precedents still on the books make clear are valid, so long as they correctly anticipate that the Supreme Court is inclined to overrule those precedents and invalidate the laws at issue. Perhaps it is possible to come up with a justification for this practice, but the Court has not offered one, and even if it were to do so, now is the worst possible time to give presidents the green light to violate acts of Congress in the hope that the Supreme Court will overrule precedents validating those acts of Congress because the current president is a law breaker.
Donald Trump is Holmes's bad man. Insofar as the law applies to him, he will do whatever he can get away with because he cares not a whit for the law as a guide to his own conduct or for the institutions of constitutional democracy. Insofar as the law applies to others, however, Trump views it as a useful tool with which to persecute his perceived political enemies. The Supreme Court has just loosened the law's restrictions on Trump, while handing him a potent political weapon. That is not the action of a Court that recognizes the peril he poses to the republic.