President Trump Made History Last Week on the Supreme Court's Shadow Docket

President Donald Trump began his second term with a sweeping and much needed “firing spree” in which he went after the notorious independent agencies in the so-called Headless Fourth Branch of the Government. A National Labor Relations Board Commissioner and a Merit Systems Protection Board Commissioner, both of whom were protected by statutory clauses providing that they could only be fired for cause, were instead fired at will. The Commissioners whom Trump fired had secured an order from the U.S. Court of Appeals for the D.C. Circuit reinstating them in their jobs.

In an unsigned 6 to 3 order on May 22, the Supreme Court stayed the D.C. Circuit’s reinstatement order, saying the plaintiffs were unlikely to prevail on the merits because they were exercising “executive power” in violation of Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). Justice Kagan’s dissent quite accurately accused the six Republican appointed justices who were in the majority of implicitly overruling an infamous 90-year-old precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

Former Attorney General Ed Meese, in an address that he gave on February 27, 1986, swung for the fences and called for the overruling of Humphrey’s Executor 39 years ago and an end to the headless Fourth Branch. Meese argued that independent agencies exercising “executive power” are unconstitutional since the Vesting Clause of Article II of the Constitution provides that “The executive Power shall be vested in a President of the United States of America” and not also in a headless Fourth Branch. A generation of Federalist Society scholars, including me and especially, Professor Saikrishna Prakash of the University of Virginia School of Law, have followed Ed Meese’s call and have urged the overruling of Humphrey’s Executor. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2012); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale Law Journal 541 (1994).

Three people deserve great credit for this enormous victory in a campaign to get Humphrey’s Executor overturned that has lasted for 39 years. First, and most obviously, credit goes to President Donald Trump for having the resolve to fire independent agency commissioners, which no recent other President—including even Ronald Reagan—had done. Second, credit goes to Reagan’s former Attorney General Ed Meese for boldly pointing out what needed to be done 39 years ago, for which he was thrashed then by the press and even by Supreme Court Justice Sandra Day O’Connor and his own Solicitor General, Charles Fried. Third, a huge amount of credit goes to President Trump’s first-term White House Counsel, Don McGahn, who helped President Trump in appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Like Ed Meese 40 years ago, Don McGahn made it a top priority to appoint Supreme Court justices and lower federal court judges who believed in the theory of “The Unitary Executive” and who would work to get rid of President Franklin D. Roosevelt’s oppressive, undemocratic, and unconstitutional Administrative State.

All three of President Trump’s first-term appointees joined this ruling together with Justice Clarence Thomas, a George H.W. Bush-appointed justice, and George W. Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito. Chief Justice Roberts has paved the way for last week’s victory in opinion after opinion over the last fifteen years, and he also deserves a lot of credit for this great victory.

Don McGahn is the brilliant lawyer who planted the seeds so that this 1937-like constitutional moment in presidential power law would happen. President Trump in turn deserves a huge amount of credit for making McGahn his first term White House Counsel. As Trump promised legal conservatives, you will win so many times you will almost get tired of winning! Libertarians as well should thank McGahn and President Trump for this as well.

Incidentally, I had the personal experience of getting a huge amount of help behind the scenes from McGahn in writing my amicus brief with Attorneys General Ed Meese and Michael Mukasey and Professor Gary Lawson in Trump v. United States. That amicus brief helped persuade District Judge Aileen Cannon to toss out former special counsel Jack Smith’s unconstitutional indictment of Donald Trump in the classified documents case brought against him by the former Biden Administration. Don McGahn is one of the most talented libertarian lawyers of all time.

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