This is a welcome win, but it fails to address the real problem.
Goodbye!
The Washington Post reports Supreme Court declines to reinstate independent agency board members fired by President Donald Trump
The Supreme Court’s conservative majority on Thursday said President Donald Trump likely has the authority to fire independent agency board members, endorsing a robust view of presidential power.
But the court suggested that it could block an attempt to fire Federal Reserve Chair Jerome Powell, who Trump has complained has not cut interest rates aggressively.
The court’s action essentially extended an order Chief Justice John Roberts issued in April that had the effect of removing two board members who Trump fired from agencies that deal with labor issues, including one with a key role for federal workers as Trump aims to drastically downsize the workforce.
The firings have left both agencies without enough board members to take final actions on issues before them, as Trump has not sought to appoint replacements.
While not a final ruling, the court said in an unsigned order that the Constitution appears to give the president the authority to fire the board members “without cause.”
The court’s three liberal justices dissented. “Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency,” Justice Elena Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.
The court refused to reinstate Harris and Wilcox while their cases play out in the courts over warnings from their lawyers that their action would signal that Trump is free to fire members of every independent agency, including the Federal Reserve Board.
The immediate issue confronting the court was whether the board members, both initially appointed by Democratic President Joe Biden, can stay in their jobs while the larger fight continues over what to do with a 90-year-old Supreme Court decision known as Humphrey’s Executor . In that case from 1935, the court unanimously held that presidents cannot fire independent board members without cause.
Three Rulings
- A 3-panel court blocked the dismissals in a 2-1 vote.
- The U.S. Court of Appeals for the District of Columbia Circuit voted 7-4 to return Wilcox and Harris to their jobs while their cases play out. This happened via en banc reconsideration, a rare process that involves all judges on the circuit who are in regular active service instead of the usual three-judge panel.
- The Supreme Court sided with the en banc ruling.
Are All the Rulings Correct?
All of the rulings seem reasonable except perhaps the second, but I did not read the reasoning.
The Supreme court can act to overturn precedent, but the lower courts and appeals courts should be bound by it.
Thus, based on precedent, I have no problem with the initial blockage while still welcoming the most recent Supreme Court ruling.
About the NRLB
The National Labor Relations Board: The NLRB is an independent federal agency enforcing the National Labor Relations Act, which guarantees the right of most private sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in collective bargaining, and to refrain from any of these activities. It acts to prevent and remedy unfair labor practices committed by private sector employers and unions.
Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.
NRLB Appointments
The Board has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year.
The Biden Board
Biden packed the NLRB as the Economic Policy Institute note in an article The Biden Board
The Trump administration used the NLRB to advance an agenda that can only be characterized as anti-worker, appointing corporate lawyers as general counsel and to the board (McNicholas, Poydock, Rhinehart 2019). EPI reviewed the Trump NLRB actions on issues identified as top priorities by the U.S. Chamber of Commerce, a major business trade association. The EPI report found that the Trump board had taken action on all 10 of the chamber’s top priorities, all of which gave more power and rights to employers at the expense of workers.
The Biden administration, on the other hand, has provided support for the important work of the agency, prioritizing nominations to and funding for the NLRB. President Biden’s appointees have strengthened workers’ rights to a union and collective bargaining—the core rights guaranteed by the NLRA. Through a series of decisions, the Biden board has made progress in rolling back the anti-worker agenda advanced by the Trump administration and has expanded worker protections in key areas. Further, through the work of General Counsel Jennifer Abruzzo, the agency has reinvigorated its enforcement of the NLRA and expanded its outreach efforts to ensure that more workers can access their right to a union and collective action with their co-workers.
Obvious Problem
The problem should now be obvious.
The NLRB swings from wild Left to Right depending on who get to make appointments, and those appointments are guaranteed political.
The EPI cites 6 rulings Trump made, that Biden reversed, and now Trump will reverse again.
The same happened in Biden’s EPA.
Ultimately, I believe a Supreme Court’s EPA strike down will be permanent, but the NRLB ruling seems temporary and very unsatisfactory.
If Trump can fire the NRLB without cause, then the next Democrat president can do the same.
The ping-pong problem is obvious. But the real problem is all of these allegedly “independent” agencies are in reality nothing more than political rubber stamps.
The solution is also obvious, albeit more easily said than none: Congress should kill the funding for these agencies because they are not at all “independent” and never were.
A Pocket Veto of the NRLB
I am pleased to report a pocket veto of the NLRB is in progress.
The firings have left both agencies without enough board members to take final actions on issues before them.
Trump has not sought replacements, so any pending Biden-sponsored cases are on hold.
Nothing can get done, and that’s generally the best setup for any government actions.
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Warren will also be screaming over the NRLB. Good.
There’s nothing better than a fine Warren whine!tm
The court’s three liberal justices dissented. “Not since the 1950s (or even before) has a President, without a legitimate reason, tried to remove an officer from a classic independent agency”
When appointments are political, how is an agency independent?
Another day, another bizarre threat against our allies…
Trump must have wet his bed last night and lashed out against the world.
What a prick!
The partisanship argument could be made about SCOTUS itself. “…while the Supreme Court is meant to be an impartial branch of government, its decisions and the way the public views it are increasingly influenced by partisan factors.” The trend with rulings (this case tinges on that IMO) made during the Trump admins by this SCOTUS is to dilute powers of separation & agency expertise & give those powers increasingly to the President & that should be alarming. Independent agencies were designed to be relatively independent of presidential influence, which is why they are often called “independent” or “quasi-independent”. This independence helps protect them from undue political pressure & allows them to make decisions based on expertise & established legal frameworks. The solutions could include imposing bipartisan membership within independent agencies & term limits on Fed judicial positions
The Federal Reserve is not a federal agency. It is a regulated monopoly where POTUS nominates one of the sitting governors and the Senate approves. This severely limits POTUS’ choice and what could be better for the country.
What could be better is Ending the Fed.
“Nothing can get done, and that’s generally the best setup for any government actions.”
I’m not sure why a dysfunctional government would be the goal…
but we do have the right administration in place to make that a reality.
Because it effectively returns the power to the states and the people. When has government ever made life better than we can make it ourselves, each of us acting in our own best interests? Answer: Never. Therefore, a government that isn’t making our lives worse because of gridlock is a preferred alternative to a government that is really efficient and effective (at screwing us all over).
Government is not reason, it is not eloquent it is force. And like fire, it is both a dangerous servant and a fearful master.
Or there really isn’t even a problem, when you just play by the rules:
“Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year.”
Continuity and the ability to change over time just like public sentiment.
What’s next: Trump reinvents the wheel after proclaiming it was never any good.
“They said they’ve never seen anything like it before. Nobody’s ever seen anything like it before.”
“They said it couldn’t be done; we did it.”
“And with this re-invented wheel we’ll be creating millions and millions of jobs and making trillions of dollars. Isn’t it wonderful?”
Very good post and very good insights but the problem won’t stop with the NLRB. Here’s the likely scenario, Trump screws up the economy (like Bush did) and America ends up with 8 years of a democrat trifecta. The same democrats that are taking notes and getting enablement from SCOTUS will then take their turn doubling, tripling or quadrupling down on Woke, EPA, USDA, FCC, lawfare, etc. Repubs will screech and scream but it’s their own cesspool that they’re creating.
That’s right SCOTUS knows who is really in charge, you don’t mess with the Iron Bank.
The current and upcoming messes won’t matter to me one bit because I have an exit strategy. It does look like that exit strategy is closing for many though, at least in Europe, wont’ take long for South America and Asia to say no to Americans.
https://www.xatakaon.com/magnet/more-and-more-americans-are-looking-to-live-abroad-theres-one-problem-europe-is-closing-its-doors-to-them
The pandemic prompted digital nomads to move from the U.S. to countries with more relaxed mobility measures and a lower cost of living. Many European nations embraced them and welcomed their investments. However, over time, the geopolitical landscape has undergone significant changes.
What remains constant is the desire of Americans to move to Europe in search of stability, security, and a better quality of life. The difference now is that Europe is starting to close its doors. In fact, U.S. citizens will soon be required to obtain an entry visa (ETIAS) to visit Europe.
How about Trump banning foreign students from Harvard? Is that a dictator move or what?
Yup, Americans aren’t smart enough to get into Harvard – if it were a true meritocracy, most of the slots would go to Asians because they score higher on most tests. There was even a big lawsuit about it a while back.
https://www.wsj.com/articles/arguments-over-how-to-prove-racial-bias-drive-final-day-at-harvard-trial-1541200938?mod=article_inline
Banning foreign students in the middle of a demographic spiral….what could possibly go wrong?
The real impact won’t be felt now, it will be 5 to 10 years from now right when 80m boomers are hitting social security. Good luck.
Yes, agree – meant to comment on that
Ask GROCK what the skin color of the majority of humans on earth will be in fifty years.
CARAMEL.
light brown sugary sweet goodness through and through.
White will be a beautiful forgotten color of the human race!
I didn’t believe AI until THAT answer.
End the fed and replace with free market?
Been there, done that.
Better to have ONE corrupt entity in charge of monetary policy than INFINITY corrupt entities clamoring for bitcoin, melaniacoin, gold, silver, sea shells…
MONEY IS TRUST.
Never has been anything else, I “trust” you gold is pure, so I will trade with you.
I see that your “gold” Is only on the surface of lead, therefore I don’t TRUST you.
USA has paper money that the world trusts.
Truth is often stranger than fiction.
https://www.youtube.com/shorts/s9MIyRZFYoE?feature=share
I think part if not all of the reason for foreign student admission is that they pay exorbitant tuition, more than US citizens.
That is what he said he would be… “Dictator on day one”.
He could have been referring to Venus, where a day takes 243 Earth days. In that case, there’s still a chance he will end the Ukraine war on “Day 1”.
Harvard should be able to import as many anti-antisemitic activist students it wants. American Jewish students have no right to be in Harvard to begin with. Harvard already has too many Asian and White students and that has to stop. The government has no right to stop tax money from going to Harvard because it is Harvard and certainly must not have the right to look into how that money is spent. Harvard is unique and special and its scientific research cannot be done anywhere else because it is Harvard. Future Asian, White and Jewish students and professors will just have to go somewhere else to teach and get taught.
easy solution. cut off all government money to colleges. all state universities shuttered. same for HS
Here, here, Doug! Let me posit these additional considerations:
Maybe Jews just shouldn’t be allowed to attend higher education outside of Israel?
Maybe we should pass a law that says no White, Asian or Jewish person can be elected President or hold federal office for the next 100 years?
Mish refers to Biden appointments as being from the “wild left” while Trump’s NLRB appointments are merely from the right, not noting that Trump’s appointment are right wing MAGA.
Also, come on Mish – cheesy to refer to Elizabeth Warren’s reactions as “whining”. If she was a male, she would be referred to as assertive. Enough of the hate on women Trump promotes.
This is a typical reaction.
I get it from the Left and the Right when I criticize either.
The fact is, that NLRB was obscenely LEFT.
No, if she was a male, she’d be referred to as a poser and a fake. Which she is.
To quote Samuel Johnson, A man is in general better pleased when he has a good dinner upon his table, than when his wife talks Greek.
The Supreme Court is now mutating into an organ for the advancement of right-wing interests. Its final form, like a butterfly out of a chrysalis, will be interesting to behold.
Simple solution, Congress, appoint instead of President. There , what other problems can I solve tonight?
It seems to me the case if odd if ꜱᴄᴏᴛᴜꜱ sides with ᴘᴏᴛᴜꜱ : President would be free to fire the executive but then the ruling of such agencies would be void because Congress delegated it’s power to independent agencies and if they aren’t independent anymore (or more exactly working in the way specified by law), then the rulings made aren’t made in the conditions required by Congress…
Could it be right ?