Supreme Court sides with Trump administration in battle over ability to remove agency commissioners

The Supreme Court on Wednesday cleared the way for the Trump administration to remove three of the five members of the Consumer Product Safety Commission from office while their challenges to their firings continue.

In a brief unsigned order, the justices blocked, at least for now, a ruling by a federal judge in Maryland that had directed the Trump administration to reinstate the three commissioners, who were appointed by then-President Joe Biden. The majority explained that the case was “squarely controlled” by its May 22 ruling that allowed Trump to remove board members of the National Labor Relations Board and the Merits Systems Protection Board.

Justice Elena Kagan dissented, in an opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. “By allowing the President to remove Commissioners for no reason other than their party affiliation,” Kagan contended, “the majority has negated Congress’s choice of agency bipartisanship and independence.”

The dispute began in early May, when the three commissioners – Mary Boyle, Alexander Hoehn-Saric, and Richard Trumka – were notified that they had been fired from their positions. Under the laws creating the CPSC, a commissioner can only be removed by the president “for neglect of duty or malfeasance in office.”

Boyle, Hoehn-Saric, and Trumka went to federal court, where they argued that the Trump administration’s attempt to fire them without cause violated the law.

U.S. District Judge Matthew Maddox agreed and issued an order requiring the Trump administration to reinstate the three commissioners. He relied on the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, in which the justices ruled that although the president can normally fire subordinates for any reason, Congress can create independent, multi-member regulatory agencies with commissioners who can only be removed for cause. That ruling, Maddox emphasized, not only “remains good law and is binding on” district judges, but, he concluded, it also applies to the CPSC.

After the U.S. Court of Appeals for the 4th Circuit declined to put Maddox’s order on hold, the Trump administration came to the Supreme Court on July 2, asking the justices to intervene. U.S. Solicitor General D. John Sauer pointed to an order issued by the court in late May that had allowed the president to remove members of the National Labor Relations Board and the Merit Systems Protection Board while their challenges to their firings move forward. That order, Sauer contended, “squarely controls” the commissioners’ case. By ordering the reinstatement of the three commissioners, Sauer argued, Maddox “has sown chaos and dysfunction” at the CPSC, warranting the court’s “immediate intervention.”

In a filing on July 11, the commissioners urged the justices to leave Maddox’s order in place – and allow them to remain in their jobs. Doing so, they told the court, would preserve the status quo, because they have been back at work since June 13; before that, they added, they served for four months without any complaints before the Trump administration attempted to fire them.

Boyle, Hoehn-Saric, and Trumka also echoed Maddox’s conclusion that the “structure and function” of the CPSC “‘closely resemble[]’ those of the agency described in Humphrey’s Executor and that the CPSC’s statutory tenure protections, like those upheld in Humphrey’s Executor, are accordingly constitutional.”

On Wednesday afternoon, the majority granted the Trump administration’s request to pause Maddox’s order while litigation continues. The court’s brief order acknowledged that Trump v. Wilcox, its ruling in the case of the MSPB and NLRB board members, was only an “interim” ruling that was “not conclusive as to the merits” of the dispute. However, it continued, such interim orders nonetheless “inform how a court should exercise its” discretion in similar cases.

The decision to grant the Trump administration’s request to be able to fire the MSPB and NLRB board members, the majority explained, “reflected ‘our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.’” That reasoning applies equally to the CPSC commissioners, the majority wrote, when the CPSC “exercises executive power in a similar manner as the” NLRB, “and the case does not otherwise differ from Wilcox in any pertinent respect.”

Justice Brett Kavanaugh agreed with the decision to pause Maddox’s ruling, and he added that he would have gone ahead and granted review in Wilcox without waiting for the court of appeals to weigh in. “When an emergency application turns on whether this Court will narrow or overrule a precedent,” he said, “and there is at least a fair prospect (not certainty, but at least some reasonable prospect) that we will do so, the better practice often may be to both grant a stay and grant certiorari before judgment.”

In her dissent, Kagan decried what she characterized as the court’s repeated use of the emergency docket “to destroy the independence of an independent agency, as established by Congress.” She suggested that the court had “all but overturned Humphrey’s Executor,” and she stated that these actions have occurred “with the scantiest of explanations.” “By means of such actions,” she concluded, “this Court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of Government to another.”