153. Living by the Ipse Dixit

A constitutional principle like the "unitary executive theory" isn't worth all that much if the Supreme Court can conjure new, unprincipled exceptions to it by simply asserting that they exist.

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Every Monday morning (including holidays like today), I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. We also just launched “First One,” the weekly bonus audio companion to the newsletter, with the latest episode (which, among other things, reflects on how I think about which content to put in front of/behind a paywall) dropping last night. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

There’s quite a lot of Supreme Court news to choose from for this week’s “Long Read.” But I wanted to take a minute to dive more deeply into the Court’s Thursday afternoon order in Trump v. Wilcox—in which, over public dissents by the three Democratic appointees (who all joined Justice Kagan’s feisty opinion), the Court allowed President Trump to fire members of the National Labor Relations Board and the Merit Systems Protection Board notwithstanding statutes that bar their termination without good cause. The result in Wilcox is not exactly surprising. But what is a bit shocking is just how cavalierly the majority’s unsigned two-page order dealt with the elephant in the room—the implications of such a ruling for the independence of the Federal Reserve:

Justice Scalia once wrote that “It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.”¹ I’m not sure if the majority in Wilcox is ever going to die by the ipse dixit highlighted above. But the analytical coherence of the “unitary executive theory” necessarily did. After all, a theory that is premised on the claim that the Constitution vests “all” of the executive power in the President isn’t much of a theory if the Supreme Court can (1) make up new exceptions for “uniquely structured” and/or “quasi-private” entities; and (2) do nothing to explain why those characteristics do or should matter for purposes of the scope of the President’s Article II powers.

As I explain below, the Wilcox ruling may make plenty of sense as a practical compromise, but that just proves the point: The stronger the arguments are for such a compromise, the more skeptically we should view any efforts to subject constitutional law to grand unifying interpretive theories in the first place—or decisions that hide behind such theories in lieu of grappling with comparable practical and/or historical considerations.

But first, the (other) news.

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On the Docket

Last week started with a very quiet Order List—with no new grants of certiorari and no writings respecting denials. The absence of new grants is telling; by my count (and the Court’s), the justices currently have a total of eight cases on their docket for next term. That’s … not a lot. Of course, the Court could pick up the pace as soon as tomorrow (when we expect an Order List at 9:30 ET). But the slower the Court is at filling its docket for the fall, the more I think we can say that’s at least one possible consequence of how busy the emergency docket has been.

Speaking of the emergency docket, Monday saw four relevant orders. There were two denials of stays of execution to Indiana death-row inmate Benjamin Ritchie, the latter of which came over public dissents from Justices Sotomayor and Jackson. Justice Sotomayor, acting as circuit justice for the Second Circuit, issued an administrative stay in a case in which the court of appeals had held that the Constitution does not protect the right of individuals facing extradition to challenge their putative transfer on the ground that it violates the U.N. Convention Against Torture (for more on this issue, which has been kicking around for awhile, see this 2013 piece of mine). She also called for the government to respond by 4 p.m. tomorrow (Tuesday). And the full Court granted the Trump administration’s application for a stay in the Venezuelan TPS case—an unexplained order that had and is having massive immediate effects for the hundreds of thousands of Venezuelan immigrants who were lawfully present in the United States and/or had work authorizations until Secretary Noem purported to take their TPS away. Only Justice Jackson publicly noted a dissent, but she did not write separately.

And that was Monday.

Tuesday brought with it the Court’s ruling on the emergency application in Libby v. Fecteau—respecting the Maine legislature’s sanctioning of one of its members for doxing an underage transgender athlete. In an unsigned order, a majority granted the legislator’s application for an injunction pending appeal—effectively freezing the state legislature’s disciplinary order while the lawsuit challenging it proceeds. Justices Sotomayor and Jackson publicly noted their dissents, with Justice Jackson penning a five-page opinion to that effect. As she noted:

Whether the House’s censure and resulting sanction violate Libby’s constitutional rights, or those of her constituents, raises many difficult questions. What are the limits on a state legislature’s ability to bind its members to ethics rules? Do federal courts have the authority to determine that those rules are improper? Does it violate a representative’s First Amendment rights to be subject to sanction under such rules, and does it make a difference what the sanction is? What rights does the Federal Constitution give constituents to override the enforcement of ethics rules of their state legislature? Does a federal court have the power to enjoin state representatives from enforcing a state legislature’s ethics rules? And may the court enjoin legislative employees from carrying out the will of the state legislature with respect to that enforcement?

The problem, as her dissent explains (and as I’ve written about previously), is that, unlike stays pending appeal, injunctions pending appeal (where lower courts declined to block the challenged conduct) are supposed to be reserved for cases in which the applicant’s right to relief is “indisputably clear.” Whatever the right answer is in Libby, it sure isn’t “indisputably clear.” But once again, careful adherence by a majority of the justices to their own standards of review for emergency relief seems to be … lacking.

Wednesday somehow came and went without any public action from the Court, but Thursday was another matter. In the morning, the Court handed down two rulings in argued cases:

1. Kousisis v. United States: In a technical dispute over the meaning of the federal criminal wire fraud statute, Justice Barrett wrote for a (mostly) unanimous Court in holding that the statute is satisfied so long as the defendant induces a victim to enter into a transaction under materially false pretenses, even if the defendant did not seek to cause the victim “economic loss.” Justice Thomas wrote a separate concurrence; and Justices Gorsuch and Sotomayor each wrote separately to concur only in the judgment.

2. Okla. Charter Sch. Bd. v. Drummond: In what seemed destined to be one of the most important decisions in an argued case this term, the Court ended up dividing 4-4—meaning that the Oklahoma Supreme Court’s ruling, which forbade the state from using public funds to support a religious charter school, is affirmed “without opinion.” (This is effectively the same as if the Court had just denied certiorari.) We always knew that Justice Barrett was recused. But whereas I had thought that meant there must be five votes on the merits to reverse (why else grant the case and potentially waste everyone’s time?), apparently, either four justices wanted to force the issue anyway, or someone who initially supported reversal changed their mind at some point after the grant. Either way, the denouement in Drummond kicks the can down the road, but doesn’t actually settle the issue.²

And then just before the close of business, the Court issued its ruling in Wilcox, about which much more below.

Finally, Friday saw three newsworthy actions: In the morning, the full Court denied, over no public dissents, Maryland’s emergency application contesting a Fourth Circuit grant of post-conviction habeas relief to a state prisoner. (The Court has recently denied two similar applications from Ohio). After lunch, Chief Justice Roberts issued an administrative stay of two lower-court rulings in the DOGE/FOIA case (in which the government is seeking to block discovery into who, exactly, is in charge of DOGE). And after the close of business, the Trump administration withdrew its pending application for emergency relief in the mass-reductions-in-force case—but only because the district court, in the interim, had converted its temporary restraining order into a preliminary injunction, which the government is challenging afresh in the Ninth Circuit. (In other words, this case will likely be back on the emergency docket soon.)

Turning (finally) to this week, the Court is closed today for Memorial Day, and almost certain to not issue any rulings on emergency applications until tomorrow, at the earliest. As noted above, we expect a regular Order List at 9:30 tomorrow, but there is, as yet, no public sitting of the Court (to hand down decisions in argued cases) on the calendar.³ The justices are set to meet in Conference on Thursday (at which one of the cases they’ll be considering is our challenge to the constitutionality of the “short-martial”), but the only other actions we expect are further rulings on pending emergency applications. In particular, it wouldn’t surprise me if we heard this week on (1) the Trump administration’s application in the CHNV humanitarian parole case (about which I wrote previously); or (2) the DOGE-access-to-Social-Security-data case.

<exhale>

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The One First “Long Read”:
The (Not-So-)Unitary Executive

I’ve written before in some detail about the rise of the so-called “unitary executive theory”—and how it has run amok during the opening months of the second Trump administration. In a nutshell, by 2021, the Supreme Court had effectively coalesced around the view that, in general, statutes insulating executive branch officers from direct presidential control are usually unconstitutional—with exceptions for those that look like the statutes the Court upheld in Humphrey’s Executor (for-cause removal for heads of multi-member commissions like the Federal Trade Commission); and Morrison v. Olson (for-cause removal for certain “inferior” officers).

Although arguments can be made about why some agencies look more like the FTC than others, there’s a fairly broad consensus that the reason why the Wilcox case is so important is because, unlike the Hampton Dellinger case (about the single-director Office of Special Counsel), the National Labor Relations Board and Merit Systems Protection Board are built on the FTC-like model—quasi-independent executive branch agencies headed by a multi-member body of officers. In other words, it would be very difficult for the Supreme Court to strike down the statutes requiring good cause to fire members of the NLRB and MSPB without overruling Humphrey’s Executor—and, in the process, calling the independence of the Federal Reserve into question. This is exactly why the district court enjoined the removals of Cathy Harris from the MSPB and Gwynne Wilcox from the NLRB; and why the en banc D.C. Circuit voted 7-4 to deny a stay of that injunction. So long as Humphrey’s Executor is good law, the statutes Trump violated by firing Harris and Wilcox without cause are constitutional.

I had thought that this dilemma is why it was taking so long for the justices to dispose of the Trump administration’s emergency application in Wilcox—which was filed on April 9. Indeed, Chief Justice Roberts’s administrative stay, a temporary placeholder that’s supposed to last only for a few days to a week, had been in place for more than six weeks(!) when the Court finally ruled on Thursday. But the two-page ruling the Court ultimately issued granting the government’s application for a stay is short on nuance. Here’s the critical passage:

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 question is better left for resolution after full briefing and argument. The stay also reflects 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

In other words, the Court hasn’t overruled Humphrey’s Executor yet, but it has sure signaled that it thinks it is likely to do so—in a context in which, as Justice Kagan’s dissent points out, it wildly overstates the harm to the President and understates the harm on the other side of the equation (which is not just to the officers who have been fired in violation of a statute, but to Congress, which enacted those removal protections). Thus, although the majority insists that “[a] stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation,” there are other “disruptive effects” that leaving the district court’s injunction in place would’ve avoided.

As Justice Kagan points out in her dissent,

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 Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.

That’s all problematic enough from the perspective of how the Court handles emergency applications (a topic about which I’ve … written … previously). But then there’s how the majority purports to distinguish the Federal Reserve: “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.”

As Justice Kagan puts it, this “bespoke Federal Reserve exception” to the unitary executive theory “poses a puzzle.” As she notes, footnote 8 of the Court’s 2020 ruling in Seila Law (the citation at the end of that sentence) “provides no support.” And as folks like Professor Christine Kexel Chabot have pointed out, there’s no meaningful respect in which the Fed “follows in the distinct historical tradition of the First and Second Banks”; nearly 80 years transpired between the demise of the Second Bank and the chartering of the Federal Reserve—two institutions based upon radically different structural principles and exercising radically different types of authority.

But even if the Federal Reserve could be analogized to the First and Second National Banks, that doesn’t actually strengthen the case for an exception to the unitary executive theory; it undermines the theory itself. For if the Founders generally supported the existence of entities exercising at least some executive power that were headed by officers insulated to some degree from direct presidential control (as Professor Chabot has argued with respect to, e.g., the Sinking Fund Commission), then our “history and tradition” don’t actually support the unitary executive theory.

Nor am I especially persuaded by arguments like those advanced by my friend and University of Chicago law professor Will Baude, who suggested in the New York Times that “monetary policy is not necessarily executive power.” Even if that’s true (a matter of some debate), the issue is the way the Federal Reserve is structured today—in which there’s no distinction between the quasi-independent body that sets monetary policy and that takes various other actions that all agree are executive. Indeed, the article Baude cites in support of that proposition concedes that the Fed would have to be restructured by Congress to avoid being impacted by the overruling of Humphrey’s Executor—not that it can be distinguished as it’s structured today.

This, to me, is the broader problem with the Court’s ruling in Wilcox. Yes, the Court is doing too much through an unsigned and barely-explained order on the emergency docket. Yes, it is yet again mis-balancing the equities (in this case, by also mis-describing what the equities are). Those are, as regular readers will surely know by now, endemic problems on the shadow docket. But the discussion of the Federal Reserve gives away the substantive game because there’s no persuasive ground on which to distinguish the Fed at least as it’s currently structured.

And if the unitary executive theory is subject to exceptions for contexts in which the practical consequences of eliminating an agency’s independence would be too extreme, then it’s not much of a theory. Rather, it’s just a balancing test—for those agencies that are “too important” to be subject to direct, partisan political control and those that aren’t. Conceding that point would suggest that agency independence is not presumptively unconstitutional; and that one must do more than just wave their hands at the “unitary executive theory” to explain why dozens of statutes Congress has enacted over more than a century protecting different agencies and officers from direct presidential control are unconstitutional.

Nor is this the first time we’ve seen this problem. I’ve written before about how one of Justice O’Connor’s very last votes before she retired effectively undermined the entire analytical foundation of the modern Supreme Court’s jurisprudence respecting state sovereign immunity. Again, there are good practical arguments for the exception O’Connor supported (allowing Congress to subject non-consenting states to suit in cases in which they’re creditors in a bankruptcy). But for those who believe the Constitution should be interpreted pursuant to methodologies the defining virtue of which is that they produce one consistent, objective answer, each exception that the Court recognizes undermines the entire enterprise—especially when the exception appears to be retrofitted onto the theory, rather than baked into it.

Ultimately, theories with bespoke exceptions aren’t theories; they’re just preferences. And as much as that conclusion bothers me less than those who purportedly claim adherence to such theories, it also requires the justices to do more work—and to explain why, especially at this moment in American history, we should prefer a constitutional understanding under which a single person is given so much control over every facet of governance. One might think that our recent experience would push us to strike that balance differently—at least once we accept that it is a balance that courts are (and always have been) striking.

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SCOTUS Trivia: Extra-Long Administrative Stays

I mentioned above that the administrative stay in Wilcox ended up staying in effect for more than six weeks (43 days, to be exact). I’ve tracked every administrative stay issued by a single justice since the practice took off in the early 2010s. And near as I can tell, the administrative stay in Wilcox is the second-longest—surpassed only by the one Justice Alito entered in Zubik v. Burwell in 2015, which froze things for almost 10 weeks pending the complicated order the Court ultimately issued in that case (before granting certiorari the following October). And unlike the administrative stay in Zubik, this one comes one year after Justice Barrett, in an opinion joined by Justice Kavanaugh, went out of her way to stress how briefly administrative stays should remain in effect. Maybe they meant “only in the lower courts”?

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1. An ipse dixit is an assertion without proof—a claim that a speaker offers as true solely because they said it.

2. This is a very small point, but the resolution of Drummond without a signed opinion means that the Court will end up with one fewer signed opinion than we’d expected—so that, at this point, the most that we’re looking at is 57.

3. We think that, once the Court hears argument on an emergency application (like the three in the birthright citizenship cases), it hands down any opinion as if it were any other argued case. This is, at least, what has happened with each of the three sets of applications that have been argued since January 2022. If so, then we would expect a ruling in the birthright citizenship cases only during one of the previously announced public hand-down sessions.