Left: Justice Elena Kagan listening to President Donald Trump’s address before a joint session of Congress on February 28, 2017 (Photo by Alex Wong/Getty Images). Right: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington. (AP Photo/Alex Brandon).
A U.S. Supreme Court ruling issued Thursday, which gave President Donald Trump the authority to dismiss two Biden-appointed independent agency heads, “effectively endorses” Trump’s efforts to remove them “without a legitimate reason” — and “essentially, take the law into his own hands” — according to an intense dissent written by Justice Elena Kagan.
“Not since the 1950s (or even earlier) has a President, without a legitimate reason, sought 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,” Kagan asserts in her eight-page dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, the court’s two other liberals, in opposing the majority decision.
“Yet now the President has discharged, concededly without cause, several such officers, including a member of the NLRB (Gwynne Wilcox) and a member of the MSPB (Cathy Harris),” the dissent blasts.
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Kagan, an Obama appointee, notes how 14 different presidents have “lived with Congress’s restrictions” on firing members of independent agencies, and she has “no doubt” many would have preferred to do things differently while in office, but they didn’t.
“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,” her dissent says.
The majority claimed Thursday that Trump had the constitutional authority to temporarily remove independent agency heads who exercise power on his behalf “because the Constitution vests the executive power in the president,” according to the justices.
Cathy Harris, a Democrat, was supposed to serve until her term with the U.S. Merit Systems Protection Board expired in 2028 before she received notice on Feb. 10 that she had been “terminated, effective immediately.” Without her, the MSPB lacks a quorum, which could hamper its ability to function as the Trump administration continues its sprawling efforts to gut the federal workforce.
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Harris sued the Trump administration on Feb. 11 and won her job back through a temporary restraining order and a subsequent permanent injunction, both of which were issued by U.S. District Judge Rudolph Contreras on Feb. 18. The administration appealed the district court’s ruling, and a three-judge appeals court panel voted 2-1 in the government’s favor, staying Contreras’ injunction and allowing both firings to remain in place. The U.S. Circuit Court of Appeals for the District of Columbia, in a 7-4 vote, then blocked the president from removing Harris and National Labor Relations Board head Gwynne Wilcox — who filed a lawsuit on Feb. 5 — reasoning that the pair was improperly dismissed without cause.
On April 9, the Justice Department filed a petition urging the high court to intervene and Chief Justice John Roberts swooped in at the eleventh hour to bail out the Trump administration with a stay of the appellate court order. Roberts did not rule on the merits of the case, but he did temporarily halt the reinstatements.
In her dissent to Thursday’s order, Kagan rips Trump for failing to “follow existing precedent,” citing the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which controls the originating statute that created the MSPB: the Civil Service Reform Act of 1978 (CSRA). In tandem, the two sources of law have, for decades, been understood to mean that a president can fire a member of an independent agency “only for inefficiency, neglect of duty, or malfeasance in office.”
Kagan torches Trump for failing to understand this.
“In valuing so highly — in an emergency posture — the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency,” Kagan contends. “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.”
Kagan further criticizes the majority for justifying its stay on the ground that it’s “appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers,” writing in a footnote that “that reason, too, gives the ultimate game away,” and that the “order itself causes disruption,” per the footnote.
“Today’s order … favors the President 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,” Kagan writes on the last page of her dissent. “I would deny the President’s application. I would do so based on the will of Congress, this Court’s seminal decision approving independent agencies’ for-cause protections, and the ensuing 90 years of this Nation’s history.”
