The Supreme Court Just Rewarded Trump for Brazenly Breaking the Law

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The Supreme Court handed Donald Trump a huge victory on Thursday, breaking with nearly a century of precedent protecting agency leaders from presidential removal. All three liberal justices dissented from the unsigned decision , which allowed him to fire leaders of two independent agencies while their lawsuits worked their way through the lower courts.

The court's emergency order, issued over the shadow docket, is not a final decision on the merits. But it strongly signals that the conservative supermajority is ready to give Trump near-total control over the entire executive branch by abolishing the independence of key federal agencies—with one notable exception.

Dahlia Lithwick and Mark Joseph Stern discussed the court's latest capitulation to Trump on this week's episode of Amicus . A preview of their conversation, below, has been edited for length and clarity.

Dahlia Lithwick: Can you walk us through how the Supreme Court seems to have just invented new law this week in yet another unsigned ruling on the shadow docket?

Mark Joseph Stern: First, let's recap. Donald Trump fired Gwynne Wilcox of the National Labor Relations Board, which protects unions, and Cathy Harris of the Merit Systems Protection Board, which protects federal workers. Both women were protected from removal from the president by federal law. Congress enacted a statute that says the president cannot fire members of the NLRB or the MSPB without good cause, and there was no good cause here. And 90 years ago, in a case called Humphrey's Executor , the Supreme Court unanimously ruled that Congress can protect commissioners on multimember agencies from presidential removal, as it did here. But Trump fired Wilcox and Harris anyway. There's no question that he broke the law. Yet the Supreme Court sided against Wilcox and Harris anyway, refusing to reinstate them, on the ground that they exercise “considerable executive power.”

I think it's important to be clear that the sentence “ Humphrey's Executor has been overruled” appears nowhere in this order. This is a preliminary decision. And yet, as you say, by keeping Wilcox and Harris fired, it sure looks like the Supreme Court has done exactly that. It's made Trump the big boss, the king, the unitary executive. And one practical implication is that there's no chance any of the other officials he has illegally axised, including FTC commissioners, are getting their jobs back. Independent agencies are just gone—except for, maybe, the Federal Reserve?

That's right. The logic of the unitary executive theory that the Supreme Court just adopted should give the president power to meddle with and fire members of the Federal Reserve. It would mean that the protections for the Fed's independence, which is also enshrined in statute, are unconstitutional. And Wilcox and Harris really lifted that up in this case, warning the court: Watch out, because if you rule against us, you will destroy the Fed by letting Trump seize control of monetary policy. Which could mean irresponsibly slashing interest rates, setting off ruinous inflation, you name it.

So, on Thursday, the majority added this random paragraph at the very end of their order saying: Don't worry, what we just did does not apply to the Federal Reserve . Why? Because the Fed “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.” So, magically, this decision does not apply to Jerome Powell, who gets to remain chair of the Fed. And the justices don't have to worry about tanking their 401(k)s.

This makeshift exception does not look, in any recognizable way, like law. The distinctions between the Fed and other independent agencies don't make any sense: Every agency is “uniquely structured”! The Fed's Board of Governors is not a “quasi-private entity”! And every agency has its own “distinct historical tradition”! Nothing about this sentence shows why the Federal Reserve should have some special constitutional status.

Let's talk about Justice Elena Kagan's dissent, because she cycles through all the stages of grievance in about eight pages. I want to focus on this fourth wall–breaking moment, when she comes close to saying: Do you understand that you are rewarding one person, and that is the lawless Donald J. Trump? We heard some of that last week during arguments in the birthright citizenship case when she questioned the administration's good faith. But here she's really saying: Hey, majority, you are handing a win to somebody who wants to break the law.

Two quotes jump out. First, she wrote: “It should go without saying that the President must … follow existing precedent, however strongly he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey’s , betting that this Court would acquiesce. And the majority today obliges.” Which is an interesting way of asking her colleagues: Why are you letting him make us irrelevant? Then, she criticized the majority's “impatience to get on with things—to now hand the President the most unitarian, meaning also the most subservient, administration since Herbert Hoover (and maybe ever).”

I read Kagan as saying that to do this is bad, but to do it for Trump is inexcusable. Her comment about the court blessing the most “subservient” administration in history is the most important line in the dissent. She is highlighting—in a way justices rarely do—the practical and political consequences of this decision, which is to allow Trump to act as a monarch, to sixteen sweeping authority over the executive branch, to install his own lackeys and loyalists who will corrupt these agencies that were intended to be balanced and independent. Congress wanted these agencies to operate as a balanced body of experts who enforce the law in a way that's best for the American people. And Kagan is reminding her colleagues that they are not going to do that when Trump gets to fire their members and replace them with loyalists.

I also see an implicit warning here that Trump will weaponize those agencies as tools for personal retribution, because that's what he's doing with agencies that he already controls. He has used the Justice Department, the Department of State, and the Department of Homeland Security to go after law firms , student protesters , and people he doesn't like. Now, with Humphrey's functionally dead, he can deploy “independent” agencies like the FTC and the FCC to do the same. These agencies wield a lot of power; that's one reason why Congress wanted so badly to insulate them from direct, partisan control by the White House. And now all of that is gone. And I think what Kagan wants us to understand here is that it is so profoundly dangerous for the majority to abolish their independence under Trump of all presidents.