Trump v. Wilcox

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1 Cite as: 605 U. S. ____ (2025)
SUPREME COURT OF THE UNITED STATES
No. 24A966
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL. v. GWYNNE A. WILCOX, ET AL.
ON APPLICATION FOR STAY
[May 22, 2025]
The Government has applied for a stay of orders from the
District Court for the District of Columbia enjoining the
President’s removal of a member of the National Labor Re-
lations Board (NLRB) and a member of the Merit Systems
Protection Board (MSPB), respectively. The President is
prohibited by statute from removing these officers except
for cause, and no qualifying cause was given. See 29
U. S. C. §153(a); 5 U. S. C. §1202(d).
The application for stay presented to T
HE CHIEF JUSTICE
and by him referred to the Court is granted. Because the
Constitution vests the executive power in the President, see
Art. II, §1, cl. 1, he may remove without cause executive of-
ficers who exercise that power on his behalf, subject to nar-
row exceptions recognized by our precedents, see Seila Law
LLC v. Consumer Financial Protection Bureau, 591 U. S.
197, 215−218 (2020). The stay reflects our judgment that
the Government is likely to show that both the NLRB and
MSPB exercise considerable executive power. But we do
not ultimately decide in this posture whether the NLRB or
MSPB falls within such a recognized exception; that ques-
tion is better left for resolution after full briefing and argu-
ment. The stay also reflects our judgment that the Govern-
ment 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. See Trump v. International

2 TRUMP v. WILCOX
Refugee Assistance Project, 582 U. S. 571, 580 (2017) (per
curiam) (“The purpose of . . . interim equitable relief is not
to conclusively determine the rights of the parties, but to
balance the equities as the litigation moves forward.” (cita-
tion omitted)). A stay is appropriate to avoid the disruptive
effect of the repeated removal and reinstatement of officers
during the pendency of this litigation.
Finally, respondents Gwynne Wilcox and Cathy Harris
contend that arguments in this case necessarily implicate
the constitutionality of for-cause removal protections for
members of the Federal Reserve’s Board of Governors or
other members of the Federal Open Market Committee.
See Response of Wilcox in Opposition to App. for Stay 2−3,
27−28; Response of Harris in Opposition to App. for Stay 3,
5−6, 16−17, 36, 40. We disagree. 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. See Seila Law, 591 U. S., at 222, n. 8.
The March 4, 2025, order of the United States District
Court for the District of Columbia, No. 25−cv−412, ECF
Doc. 39, and the March 6, 2025, order of the United States
District Court for the District of Columbia, No. 25−cv−334,
ECF Doc. 34, are stayed pending the disposition of the ap-
peal in the United States Court of Appeals for the District
of Columbia Circuit and disposition of a petition for a writ
of certiorari, if such a writ is timely sought. Should certio-
rari be denied, this stay shall terminate automatically. In
the event certiorari is granted, the stay shall terminate
upon the sending down of the judgment of this Court.

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1 Cite as: 605 U. S. ____ (2025)
K
AGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 24A966
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES,
ET AL. v. GWYNNE A. WILCOX, ET AL.
ON APPLICATION FOR STAY
[May 22, 2025]
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and
J
USTICE JACKSON join, dissenting from the grant of the ap-
plication for stay.
For 90 years, Humphrey’s Executor v. United States, 295
U. S. 602 (1935), has stood as a precedent of this Court.
And not just any precedent. Humphrey’s undergirds a sig-
nificant feature of American governance: bipartisan admin-
istrative bodies carrying out expertise-based functions with
a measure of independence from presidential control. The
two such agencies involved in this application are the Na-
tional Labor Relations Board (NLRB) and Merit Systems
Protection Board (MSPB). But there are many others—
among them, the Federal Communications Commission
(FCC), Federal Trade Commission (FTC), and Federal Re-
serve Board. Congress created them all, though at different
times, out of one basic vision. It thought that in certain
spheres of government, a group of knowledgeable people
from both parties—none of whom a President could remove
without cause—would make decisions likely to advance the
long-term public good. And that congressional judgment,
Humphrey’s makes clear, creates no conflict with the Con-
stitution. Rejecting a claim that the removal restriction en-
acted for the FTC interferes with “the executive power,” the
Humphrey’s Court held that Congress has authority, in cre-
ating such “quasi-legislative or quasi-judicial” bodies, to
“forbid their [members’] removal except for cause.” Id., at

2 TRUMP v. WILCOX
K
AGAN, J., dissenting
626, 629. Indeed, that conclusion “cannot well be doubted.”
Id., at 629; see also Wiener v. United States, 357 U. S. 349
(1958) (reaffirming Humphrey’s).
The current President believes that Humphrey’s should
be either overruled or confined. See Application 14; Letter
from S. Harris, Acting Solicitor General, to Rep. J. Raskin,
Re: Restrictions on the Removal of Certain Principal Offic-
ers of the United States (Feb. 12, 2025). And he has chosen
to act on that belief—really, to take the law into his own
hands. Not since the 1950s (or even before) has a President,
without a legitimate reason, tried to remove an officer from
a classic independent agency—a multi-member, bipartisan
commission exercising regulatory power whose governing
statute contains a for-cause provision. Yet now the Presi-
dent has discharged, concededly without cause, several
such officers, including a member of the NLRB (Gwynne
Wilcox) and a member of the MSPB (Cathy Harris). Today,
this Court effectively blesses those deeds. I would not. Our
Humphrey’s decision remains good law, and it forecloses
both the President’s firings and the Court’s decision to
award emergency relief.
Our emergency docket, while fit for some things, should
not be used to overrule or revise existing law. We consider
emergency applications “on a short fuse without benefit of
full briefing and oral argument”; and we resolve them with-
out fully (or at all) stating our reasons. Does 1–3 v. Mills,
595 U. S. ___, ___ (2021) (B
ARRETT, J., concurring in denial
of application for injunctive relief ) (slip op., at 1). It is one
thing to grant relief in that way when doing so vindicates
established legal rights, which somehow the courts below
have disregarded. It is a wholly different thing to skip the
usual appellate process when issuing an order that itself
changes the law. See, e.g., Netchoice, LLC v. Paxton, 596
U. S. ___, ___ (2022) (A
LITO, J., dissenting from grant of ap-
plication to vacate stay) (slip op., at 2) (demanding that an
applicant for relief have a good claim “under existing law”);

3 Cite as: 605 U. S. ____ (2025)
K
AGAN, J., dissenting
Merrill v. Milligan, 595 U. S. ___, ___ (2022) (ROBERTS,
C. J., dissenting from grant of applications for stays) (slip
op., at 1) (same); id., 595 U. S., at ___ (K
AGAN, J., dissenting
from grant of applications for stays) (slip op., at 1) (same).
And nowhere is short-circuiting our deliberative process
less appropriate than when the ruling requested would dis-
respect—by either overturning or narrowing—one of this
Court’s longstanding precedents, like our nearly century-
old Humphrey’s decision.
Under that decision, this case is easy, as the courts below
found: The President has no legal right to relief. Congress,
by statute, has protected members of the NLRB and MSPB
(like Wilcox and Harris) from Presidential removal except
for good cause. See 29 U. S. C. §153(a) (permitting removal
only for “neglect of duty or malfeasance in office”); 5 U. S. C.
§1202(d) (permitting removal only for “inefficiency, neglect
of duty, or malfeasance in office”). And, again, Humphrey’s
instructs that Congress can do so without offending the
Constitution. Just like the agency at issue there (the FTC),
the NLRB and MSPB are multi-member bodies of experts,
balanced along partisan lines, with “quasi-legislative or
quasi-judicial” (not “purely executive”) functions. Humph-
rey’s, 295 U. S., at 628, 631; see Seila Law LLC v. Consumer
Financial Protection Bureau, 591 U. S. 197, 204, 216–217
(2020). So both fit securely within the ambit of Humph-
rey’s—as no one in the history of either agency has ever
doubted. That means to fire their members, the Presi-
dent—under existing law—needs good cause, which he ad-
mits he does not have. The only way out of that box is to
upend Humphrey’s.
For that reason, the majority’s order granting the Presi-
dent’s request for a stay is nothing short of extraordinary.
That order consents to the President’s (statutorily barred)
removal of the NLRB and MSPB Commissioners, at least
until we decide their suits on the merits. And so the order
allows the President to overrule Humphrey’s by fiat, again

4 TRUMP v. WILCOX
K
AGAN, J., dissenting
pending our eventual review. This Court often reminds
other judges that if one of our precedents “has direct appli-
cation in a case,” they must follow it, even if they dislike
it—“leaving to this Court the prerogative of overruling its
own decisions.” Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U. S. 477, 484 (1989). In keeping with
that directive, lower courts recently faced with challenges
to independent agencies’ removal provisions have uni-
formly rejected them based on Humphrey’s. See, e.g., Con-
sumers’ Research v. Consumer Product Safety Comm’n, 91
F. 4th 342, 346 (CA5 2024) (Willett, J.) (“As middle-man-
agement circuit judges, we must follow binding precedent,”
which Humphrey’s remains); Leachco, Inc. v. Consumer
Product Safety Comm’n, 103 F. 4th 748, 760–763 (CA10
2024) (similar); Meta Platforms, Inc. v. FTC, 2024 WL
1549732, *2 (CADC, Mar. 29, 2024) (per curiam) (similar).
It should go without saying that the President must like-
wise follow existing precedent, however strong 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—without so much as mentioning
Humphrey’s.
The majority’s explanation of its action unfolds in two
parts, neither rising to the occasion.
The first gestures toward the merits, but in a most unu-
sual and unedifying way. Our normal (invariable?) practice
is to grant a stay pending appeal only when we decide the
applicant is likely to succeed on the merits. See, e.g., Hol-
lingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam).
But the majority’s order purports not to reach that conclu-
sion. According to the majority, the President may remove
without cause officers exercising executive power, “subject
to narrow exceptions recognized by our precedents.” Ante,
at 1. The majority will not say the name of the relevant

5 Cite as: 605 U. S. ____ (2025)
K
AGAN, J., dissenting
precedent, but one of those “exceptions” of course comes
from Humphrey’s. See Seila Law, 591 U. S., at 204, 215–
217. The question thus becomes: Does Humphrey’s protect
the NLRB and MSPB Commissioners? Well, the majority
says, those officers likely exercise “considerable executive
power”; but whether they fall within “a recognized excep-
tion”—i.e., Humphrey’s—is better left for the future. Ante,
at 1. So the majority’s order just restates the question this
case raises—despite the need to give a preliminary answer
before ordering relief. Unless . . . unless the majority
thinks it has provided a hint. Maybe by saying that the
Commissioners exercise “considerable” executive power,
the majority is suggesting that they cannot fall within the
Humphrey’s “exception.” But if that is what the majority
means, then it has foretold a massive change in the law—
reducing Humphrey’s to nothing and depriving members of
the NLRB, MSPB, and many other independent agencies of
tenure protections. And it has done so on the emergency
docket, with little time, scant briefing, and no argument.
The second part of the majority’s explanation, focusing on
what we typically call the balance of equities, in no way
compensates for the first’s failures. Here, the majority rea-
sons that a stay is justified because the interests at stake
are lopsided. “[T]he Government,” it declares, “faces
greater risk of harm from an order allowing a removed of-
ficer to continue exercising the executive power than a
wrongfully removed officer faces from being unable to per-
form her statutory duty.” Ante, at 1. But that statement
misapprehends, on both sides, what this case involves.
On the latter side, the relevant interest is not the “wrong-
fully removed officer[s’],” but rather Congress’s and, more
broadly, the public’s. What matters, in other words, is not
that Wilcox and Harris would love to keep serving in their
nifty jobs. What matters instead is that Congress provided
for them to serve their full terms, protected from a Presi-
dent’s desire to substitute his political allies. See Wiener,

6 TRUMP v. WILCOX
K
AGAN, J., dissenting
357 U. S., at 354. Or differently put, the interest at stake
is in maintaining Congress’s idea of independent agencies:
bodies of specialists balanced along partisan lines, which
will make sound judgments precisely because not fully con-
trolled by the White House. Even without Humphrey’s, this
Court would have to give respect, in balancing equities, to
Congress’s expression of that idea in legislation. See
Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301,
1302 (1993) (Rehnquist, C. J., in chambers) (Acts of Con-
gress “should remain in effect pending a final decision on
the merits by this Court”); Walters v. National Assn. of Ra-
diation Survivors, 468 U. S. 1323, 1324 (1984) (Rehnquist,
J., in chambers) (“The presumption of constitutionality
which attaches to every Act of Congress” is “an equity to be
considered” in the stay analysis). And of course the Court
is not without Humphrey’s, which already approved the
kind of removal restrictions at issue here. Given that deci-
sion—and the near-century of administrative practice that
has followed—the majority has no excuse for so misidenti-
fying the interest that cuts against unconstrained removal.
It is, again, the interest in the NLRB, MSPB, and all their
ilk working as Congress intended them to, on the view that
a measure of independence would serve the public good.
And on the former side of the balance, the majority dis-
torts and overstates the interest in preventing Wilcox and
Harris from continuing in office. That interest, to begin
with, is not “the Government[’s],” ante, at 1, but only the
President’s. Congress, after all, is also part of the Govern-
ment, and (as just noted) its equities lie in preserving the
legislation it has enacted to limit removals. And as to the
President’s interest in firing Wilcox and Harris, the major-
ity gives it more weight than it has borne in almost a cen-
tury. Between Humphrey’s and now, 14 different Presi-
dents have lived with Congress’s restrictions on firing
members of independent agencies. No doubt many would
have preferred it otherwise. But can it really be said, after

7 Cite as: 605 U. S. ____ (2025)
K
AGAN, J., dissenting
all this time, that the President has a crying need to dis-
charge independent agency members right away—before
this Court (surely next Term) decides the fate of Humph-
rey’s on the merits? The impatience to get on with things—
to now hand the President the most unitary, meaning also
the most subservient, administration since Herbert Hoover
(and maybe ever)—must reveal how that eventual decision
will go. In valuing so highly—in an emergency posture—
the President’s ability to fire without cause Wilcox and Har-
ris and everyone like them, the majority all but declares
Humphrey’s itself the emergency.*
Except apparently for the Federal Reserve. The majority
closes today’s order by stating, out of the blue, that it has
no bearing on “the constitutionality of for-cause removal
protections” for members of the Federal Reserve Board or
Open Market Committee. Ante, at 2. I am glad to hear it,
and do not doubt the majority’s intention to avoid imperil-
ing the Fed. But then, today’s order poses a puzzle. For the
Federal Reserve’s independence rests on the same constitu-
tional and analytic foundations as that of the NLRB,
MSPB, FTC, FCC, and so on—which is to say it rests largely
on Humphrey’s. So the majority has to offer a different
story: The Federal Reserve, it submits, is a “uniquely struc-
tured” entity with a “distinct historical tradition”—and it
cites for that proposition footnote 8 of this Court’s opinion
in Seila Law. Ante, at 2 (citing 591 U. S., at 222, n. 8).
But—sorry—footnote 8 provides no support. Its only rele-
vant sentence rejects an argument made in the dissenting
——————
*The majority also justifies its stay on the ground that it will “avoid
the disruptive effect of the repeated removal and reinstatement of offic-
ers during the pendency of this litigation.” Ante, at 2. But that reason,
too, gives the ultimate game away. As this case came to us, Wilcox and
Harris had been reinstated to their positions, by the combined rulings of
the district and appellate courts. So by re-removing them, the majority’s
order itself causes disruption—except, of course, if that order presumes
or implies that they will be re-removed next Term anyway.

8 TRUMP v. WILCOX
K
AGAN, J., dissenting
opinion “even assuming [that] financial institutions like the
Second Bank and Federal Reserve can claim a special his-
torical status.” And so an assumption made to humor a dis-
sent gets turned into some kind of holding. Because one
way of making new law on the emergency docket (the dep-
recation of Humphrey’s) turns out to require yet another
(the creation of a bespoke Federal Reserve exception). If
the idea is to reassure the markets, a simpler—and more
judicial—approach would have been to deny the President’s
application for a stay on the continued authority of Humph-
rey’s.
“To avoid an arbitrary discretion in the courts,” Hamilton
wrote, “it is indispensable that they should be bound down
by strict rules and precedents.” Federalist No. 78, p. 529 (J.
Cooke ed. 1961). Today’s order, however, favors the Presi-
dent over our precedent; and it does so unrestrained by the
rules of briefing and argument—and the passage of time—
needed to discipline our decision-making. I would deny the
President’s application. I would do so based on the will of
Congress, this Court’s seminal decision approving inde-
pendent agencies’ for-cause protections, and the ensuing 90
years of this Nation’s history. Respectfully, I dissent.