The Supreme Court granted President Donald Trump a stay on an order forcing him to reinstate to reinstate Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of National Labor Relations Board (NLRB) as the two women fight for their jobs in the courts.
The vote went 6-3. SCOTUS wrote:
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.—A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.
Harris and Wilcox claimed a stay would “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.”
The majority wrote: “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.”
OK, first of all, does anyone believe the Federal Reserve is an independent agency? I mean, really!?
How about we just end the Federal Reserve!? That would solve everything!
If the president appoints your leader or others to your agency you are not independent.
The three liberal females penned a seven page dissent…for a two page order.
I do agree with Kagan on one thing. Why treat the Federal Reserve differently than these other so-called independent agencies:
I am glad to hear it, and do not doubt the majority’s intention to avoid imperiling the Fed. But then, today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on Humphrey’s.
If the Federal Reserve has that much power then it needs to be dismantled and burned to the ground…as I said above.
But it wasn’t out of the blue because as I also said above, Wilcox and Harris both argued that a stay a stay would “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.”
Wilcox and Harris forced the hands of the majority.
But if anything, Kagan’s dissent provides us more ammunition not to just end the fed but to the argument that these agencies are not independent.
Therefore, we have learned once again that less is more. Sometimes, the more you talk (or write) the more you weaken your argument.
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