The Supreme Court Gifts Trump Even More Power
The court seems ready to give the president extraordinary power over what had been independent worker- and consumer-protection agencies.
The west façade of the Supreme Court Building in Washington, DC, at dusk.
(Joe Ravi / CC-BY-SA 3.0)Here’s a troubling news alert for everyone who cares about workers and consumers being protected from illegal, exploitative, and dangerous business practices: The Supreme Court appears ready to give President Donald Trump extraordinary power over what for nearly a century have been independent expert federal worker and consumer protection agencies insulated from White House interference.
The court showed its hand in Wilcox v. Trump—the case involving Trump’s unprecedented effort to fire Gwynne Wilcox—a Senate-confirmed member of the National Labor Relations Board (NLRB) and the first Black woman to ever serve as a member of the NLRB.
Members of independent agencies like the NLRB, the Federal Trade Commission (FTC) and the Consumer Product Safety Commission (CPSC), are nominated by the president and confirmed by the US Senate for defined terms. They are protected by law against being removed from office except where there has been wrongdoing and only after notice and a hearing. The Supreme Court has recognized and respected these “for cause” removal protections for 90 years.
That is, until now. Upon taking office for his second term, Trump decided that he has the power to unilaterally remove members of independent boards and commissions whenever and for whatever reason he wants. The list of casualties is long—in addition to Wilcox, he has fired members of the Equal Employment Opportunity Commission, the FTC, the CPSC, the Merit Systems Protection Board, the Federal Labor Relations Authority, and more. And by firing these officials, Trump has left these consumer- and worker-protection agencies without a quorum to act and hold corporations accountable.
Wilcox’s case challenging the president’s attempt to remove her from office is wending its way through the courts. Wilcox won at the district-court level, and the Trump administration has been fighting ever since to get that decision stayed while trying to get it overturned. And the Supreme Court just granted the Trump administration’s wish—it issued an order granting a stay of the district court’s decision, meaning that Wilcox is out of a job unless and until the Supreme Court, after getting briefs and hearing arguments on the merits of the case, issues a decision saying Wilcox was wrongly removed.
Unfortunately, the court’s opinion granting the stay foreshadows an uphill climb for Wilcox in prevailing on the merits. The court majority seems to have prejudged the merits of the case, saying in its order that the Trump administration is likely to win on the question of the president’s authority to fire members of the NLRB. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, issued a blistering dissent, pointing out that the majority had effectively overruled decades of case law by issuing the stay and had “blessed” Trump’s actions, even though they are plainly illegal under existing Supreme Court precedent.
The court’s order is going to embolden a president who has already shown himself willing to push or violate the boundaries of his power. Now that the Supreme Court has nodded at his power to fire members of independent boards and commissions, he will undoubtably continue to do so, even before the Supreme Court definitively rules on the merits of the question in its next term.
So if you are Amazon or Tesla or Meta or Starbucks or REI or Trader Joes and don’t like the fact that the NLRB or the FTC or the CPSB or another independent agency is investigating or prosecuting you for allegedly breaking a worker- or consumer-protection law, the Supreme Court has now given you a new path to fight the charges—just complain to the president and get the agency officials fired. (Yes, all of these companies currently have cases pending before one or more independent agencies.) Or, companies can ask the White House to get an agency to investigate one of their adversaries, as the FTC is reportedly now doing to Elon Musk’s X adversary Media Matters.
The potential chilling effect on the responsible and impartial enforcement of our worker- and consumer-protection laws is clear. And when this removal power is combined with the president’s recent executive order seeking to control the actions of independent agencies and their interpretation of the law, we could well be witnessing the end of independent expert agencies as we have come to know and rely upon them.
This outcome is bad for workers, bad for consumers, and bad for responsible, law-abiding businesses who will be undercut by a White House–controlled, politically driven law-enforcement system that the Supreme Court appears poised to allow. Worker and consumer advocates, responsible businesses, members of Congress (whose authority is being usurped by the president), state attorneys general, and others who believe in, and rely on, the value of expert agencies that impartially enforce the law need to speak up, weigh in, and try to persuade the Supreme Court of the error and danger of its initial ruling on a stay. Maybe, just maybe, the court will then get it right when it decides the merits of the case in the next term.
Lynn Rhinehart
Lynn Rhinehart is a former general counsel of the AFL-CIO and most recently a senior counselor to the secretary and acting secretary of labor.