Justice praised for 'plainly exposing' Supreme Court's 'shenanigans'

The Supreme Court made up a distinction out of thin air as an excuse to give President Donald Trump more power over independent agencies, Jordan Rubin wrote for MSNBC's Deadline Legal blog — and one justice called her colleagues out brilliantly over it.

The ruling, a part of the Supreme Court's controversial so-called "shadow docket" of emergency orders, allowed Trump for the time being to fire Gwynne Wilcox and Cathy Harris, top officials at the independent National Labor Relations Board and Merit Systems Protection Board — a clear broadside at the court's 90-year-old Humphrey's Executor v. United States ruling that allows Congress to bar the termination of independent agency heads without cause.

But the right-wing Roberts Court majority insisted this shouldn't be construed to give Trump power to conduct the same sort of purge at the Federal Reserve, Rubin wrote. And their solution to this contradiction, he said, was to "make something up."

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"Responding to Wilcox and Harris’ claim that the vitality of removal protections in their case also implicates the Federal Reserve’s Board of Governors, the majority said simply: 'We disagree,'" wrote Rubin. "OK, that’s not all it said, but it didn’t say much more, and what it did say didn’t help. '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 went on. To support that proposition, it cited a footnote — footnote 8 for those playing along at home — from a 2020 case called Seila Law, in what was then the latest instance of the court granting presidents more power over agencies."

"The gambit didn’t go unnoticed by the dissent from Justice Elena Kagan, who has a knack for plainly exposing shenanigans like these," he continued. "The Obama appointee said the Federal Reserve caveat came 'out of the blue.' She appreciated the majority’s 'intention to avoid imperiling the Fed' but said it still posed 'a puzzle.' That’s because the Federal Reserve’s independence rests on the same foundation as agencies such as the NLRB and the MSPB — which, Kagan pointed out, means it rests on that nearly century-old precedent, Humphrey’s Executor. The Trump administration wants to overturn the 1935 decision, and the majority’s order effectively does so — or at least signals its willingness to do so in a future ruling in this case, which is still being fully litigated in the lower courts."

What all of this amounts to, Rubin concluded, is that Kagan told the majority if they really wanted to prevent economic chaos and keep the Fed's independence safe, “a simpler — and more judicial — approach would have been to deny the President’s application for a stay on the continued authority of Humphrey’s.”