Not only was the question bound to arise from Trump’s “firing” of board members of agencies created by Congress to be independent, such that they could putatively perform their function based upon impartiality and expertise rather than political partisanship, but it was bound to be decided. Humphrey’s Executor was on the table and everybody knew it.

What everybody did not know, and did not expect, was that the Supreme Court would effectively overrule a 90-year-old precedent on the shadow docket. Yet, that’s what it did in a 6-3 two-page per curiam decision in Trump v. Wilcox.

Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 215−218 (2020).

The Supreme Court stayed the injunction against Trump firing a member of the NLFB and the MSPB for not being loyal to him. Both of these boards were created by Congress with the express purpose of being independent of the president, including staggered terms of office of their members so that a president could not do exactly what Trump did, and wanted to do, by turning independent administrative agencies into tools of his own agenda rather than legitimate expertise.

The shadow docket is for the determination of emergency applications. Decisions  are made without full briefing or argument. They are, essentially, meant to keep the controversy in a holding pattern until such time as the Court made a full, reasoned decision on the merits. Of course, that leaves the question open as to whether the status quo should be what came before Trump’s power flex or whether Trump’s exercise of power was the pattern to be held. Here, the Court held the latter.

The Supreme Court tried, in its own tepid way, to claim that it was not doing exactly what it was doing, and that it was not making the decision it just made and would not until the case was fully briefed and argued.

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.

That’s like deciding a death penalty case in favor of the defendant after the execution has been carried out. The Court similarly dismissed the argument that permitting the president to fire members of independent agencies foretells other outcomes, such as the president firing members of the Federal Reserves board of governors. The decision suggests that the comparison is flawed.

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. 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.

Perhaps the Court is suggesting that, of all the putatively independent agencies that comprise the federal bureaucracy and whose members cannot, according to Congress’ mandate, be dismissed except for good cause, the Fed is a different creature. Perhaps this foreshadows the Court’s position when and if the issue arises, but this “distinct historical tradition” is a thin reed upon which to rely. Then again, Trump would argue “So what,” as the Fed is just another bit of the Executive branch and, as the Court held, subject to the president’s constitutional control.

Justices Sotomayor and Jackson joined Justice Kagan in dissent.

The two such agencies involved in this application are the National 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 Reserve 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 Constitution. Rejecting a claim that the removal restriction enacted for the FTC interferes with “the executive power,” the Humphrey’s Court held that Congress has authority, in creating such “quasi-legislative or quasi-judicial” bodies, to “forbid their [members’] removal except for cause.

Perhaps it would have been wiser of Congress to craft independent agencies and boards under the Legislative branch of government, such that the president would have no claim to constitutional authority to ignore Congress’ prohibition on removing members without cause, but it instead relied on the Supreme Court’s holding in Humphrey’s Executor that these agencies and boards could be placed within the Executive branch and still maintain their independence so that the nation would have boards based on impartiality and expertise rather than partisan loyalty.

While putatively part of the Executive branch, these boards and agencies exercise quasi-judicial (think immigration judges or hearing officers) and quasi-legislative powers that were given by Congress in the understanding that they possessed the requisite expertise and impartiality to be trusted to use their authority honestly for the benefit of the People.

This was not always the case, unfortunately, as boards and agencies became ideological captives in some instances, and any claim to integrity and legitimacy could be characterized as a nice ideal but a practical sham. But one thing is certain. These boards and agencies won’t be any more legitimate by allowing Trump to stack them with his sycophants. Always remember that the alternative to bad isn’t necessarily good. It can always get worse. But even if “worse” is what the Supreme Court decides, it should never have happened on the shadow docket. If the Court is going to kill off independence, at least murder them after full briefing and argument.