| For the second time in as many months, the Supreme Court last week—silently and without explanation—blew by a 90-year-old precedent that forms the backbone of much of the administrative state. The emergency-docket (or “shadow-docket”) ruling invites the Trump administration to dismantle a key independent regulatory agency. It also takes another swipe at Congress’s constitutional authority to structure and empower such agencies. And the Court accomplished all this without explanation. | | The Court in Trump v. Boyle stayed a lower-court injunction that reinstated three Democratic members of the independent Consumer Product Safety Commission (CPSC) who were summarily removed by President Donald Trump. The ruling means that the ousted commissioners remain off the Commission, at least pending the outcome of the underlying case. And because these three commissioners constituted a majority on the Commission, the ruling also means that the Trump administration can proceed to dismantle the CPSC without restraint. | | In support of the ruling, the Court cited just one case, Trump v. Wilcox. In that case, another emergency-docket ruling that came down just two months ago, the Court stayed a lower-court injunction that halted the Trump administration from summarily removing a member of the independent National Labor Relations Board (NLRB) and a member of the independent Merit Systems Protection Board (MSPB). As with Boyle, the ruling means that the ousted officials remain off their boards pending the underlying litigation; it also invites the Trump administration to continue to undermine the work of these critical independent agencies. | | In short, these rulings effect a tectonic shift in our checks-and-balance system. For one, they dramatically aggrandize the power of the President over independent agencies. For another, they sharply limit the powers of Congress to create independent agencies and vest them with authority. For a third, they substantially inflate the power of the Court. After all, the Court gives itself the power to decide these cases, without regard for or deference to Congress’s constitutional powers. | | And yet in issuing these rulings, the Court provides almost no explanation. In particular, the Court didn’t bother to cite, much less analyze, its own precedent going all the way back to 1935, Humphrey’s Executor v. United States. In that case, the Court held that the structure of the independent Federal Trade Commission (FTC) did not violate the separation of powers, even though Congress restricted the President from removing FTC members except for cause. The Court said that Congress vested the FTC with quasi-legislative and quasi-judicial powers (and not purely executive powers), and that its members’ independence from the President therefore did not impermissibly encroach on the President’s power to execute the law. As a result, for the last 90 years, Congress has acted comfortably within its own powers in creating independent agencies like the FTC, including the CPSC, the NLRB, the MSPB, and many, many more. Congress, drawing on its own constitutional powers, created these agencies, vested them with critical regulatory authority, and insulated their decision-making from the day-to-day politics in the White House. Humphrey’s Executor validated this practice. | | But the Court’s recent rulings seem to overturn this seminal case, without explanation. That defies the Court’s usual approach. In the ordinary course of things, the Court considers several factors in overturning precedent: the strength of the Court’s reasoning in the precedent case; changed circumstances since the precedent came down; reliance interests on the precedent; and more. It considered none of these here. Worse, the Court inexplicitly carved out a single exception from its apparent new bar on independent agencies: the Federal Reserve. The Court’s lack of transparency and its unexplained exception create significant confusion in law and public policy. After all, how are lower courts, agencies, Congress, and regulated entities supposed to interpret the Court’s rulings? | | The Court’s lack of transparency creates a bigger problem, too. In failing to explain itself, the Court trades on its own credibility and legitimacy. Remember, the Court’s only means of persuasion is the power of its own reasoning. (It famously lacks the power of the purse and of the sword.) When the Court declines to explain itself, especially in such important cases, it suffers in legitimacy and even in relevance. | | The Court can do better. And it knows how. For example, in another area related to the separation of powers, the recently minted “major questions doctrine,” the Court demands that an agency point to clear congressional authority before it takes an action with economic or political significance. According to the Court, that legislative clarity is essential to protect democratic accountability and to ensure the legitimacy of agency actions. | | The Court should demand from itself that same kind of clarity in the law, including its own precedents, before it takes an even more momentous step, unravelling nearly a century’s worth of valid congressional effort to create independent agencies. Clarity in the law would heighten the standard for the Court in overturning its own precedent. Without that clarity, the Court’s rulings in these cases create confusion in the law, undermine its own legitimacy, and buttress the claim that this Court is motivated not by the law, but by raw political power. |
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