Calling the situation “untenable,” the Trump administration came to the Supreme Court on Wednesday afternoon, asking the justices to block orders by federal judges in Washington, D.C., that instructed government officials to allow board members at two independent agencies to remain in office despite President Donald Trump’s attempts to fire them. Soon after, Chief Justice John Roberts issued an administrative stay, which put those orders on hold while the justices consider the government’s request, and called for a response by 5 p.m. on Tuesday, April 15.
D. John Sauer, Trump’s new solicitor general, told the justices that the dispute “raises a constitutional question of profound importance: whether the President can supervise and control agency heads who exercise vast executive power on the President’s behalf, or whether Congress may insulate those agency heads from presidential control by preventing the President from removing them at will.”
Trump, Sauer wrote, “should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the Administration’s policy objectives for a single day — much less for the months that it would likely take for the courts to resolve this litigation.”
Sauer asked the justices to put orders by U.S. District Judge Rudolph Contreras and Senior U.S. District Judge Beryl Howell on hold while the Trump administration appeals, as well as an administrative stay
Sauer also urged the justices, whether they grant the government’s request to pause the district judges’ orders or not, to take up the dispute and rule on the merits of the cases, without waiting for the court of appeals to weigh in. Particularly if the district judges’ orders are not put on hold, Sauer suggested, the justices should order additional briefing and oral arguments in May, with a decision to follow by late June or early July.
The two agencies at the center of the dispute are the Merit Systems Protection Board, which oversees the federal government’s personnel practices, and the National Labor Relations Board, which protects the rights of employees in the private sector to join unions.
The MSPB has three members, at least one of which must be from a different political party than the other two. The members, who serve seven-year terms, are appointed by the president and confirmed by the Senate.
There are five members of the NLRB, each of whom is appointed for a five-year term by the president and confirmed by the Senate. Without Wilcox, the current board has only two members – Marvin Kaplan, the chair, and David Prouty – one short of the three needed for a quorum.
MSPB members can only be removed by the president for “inefficiency, neglect of duty, or malfeasance in office.” Members of the NLRB can only be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Cathy Harris was appointed to the MSPB in 2022 by then-President Joe Biden for a term that was slated to expire in 2028. She became the chair of the agency in 2024. During her time in that role, the MSPB cleared almost its entire backlog – of nearly 4,000 cases – that had built up since 2017.
After Trump fired Harris on Feb. 10 of this year, she went to federal court, arguing that her termination violated federal law.
U.S. District Judge Rudolph Contreras ruled for Harris, agreeing with her that the removal protections provided to members of the MSPB are constitutional under Humphrey’s Executor v. United States, a 1935 Supreme Court decision holding that although a president can generally fire subordinates for any reason, Congress can create independent, multi-member regulatory agencies whose commissioners can only be removed “for cause.” Contreras ordered the Trump administration to allow Harris to continue to serve until her term expires.
The Supreme Court’s recent decisions in Seila Law v. Consumer Financial Protection Bureau, holding that “for cause” restrictions on the removal of the CFPB director violate the Constitution, and Collins v. Yellen, striking down limitations on the president’s ability to remove the director of the Federal Housing Finance Agency, do not affect “the constitutionality of for-cause removal provisions for multimember bodies of experts heading an independent agency,” Contreras explained. To the contrary, he stressed, the Supreme Court’s reasoning in Seila Law “reaffirmed the constitutionality” of such boards, “as those agencies have a robust basis in this country’s history, and their members lack the power to act unilaterally.” And the MSPB is precisely the kind of board protected under Humphrey’s Executor, Contreras continued, because it “does not wield substantial executive power” but “rather spends nearly all of its time adjudicating ‘inward-facing personnel matters’ involving federal employees.”
Gwynne Wilcox was appointed to the NLRB in 2021 by Biden, and then appointed to a second term in 2023. When Trump fired her on Jan. 27, 2025, he said that she had not “been operating in a manner consistent with” the administration’s “objectives,” had issued decisions that had “vastly exceeded” the NLRB’s powers, and that he did not have confidence that she could “fairly evaluate matters” before the board or that she would “faithfully execute” the law governing the board.
Wilcox went to federal court in Washington, D.C., seeking to be returned to office. She argued that her termination violated the federal law governing removal of NLRB members.
Senior U.S. District Judge Beryl Howell ruled that Wilcox had been illegally fired, and she barred Kaplan from removing Wilcox or interfering with her ability to carry out her duties. Howell concluded that Humphrey’s Executor was “not only binding law,” but also a “well-reasoned reflection of the balance of powers sanctioned by the Constitution.” Moreover, she added, the power of the current NLRB “is, if anything, less extensive than that of the FTC” at the time of the court’s decision in Humphrey’s Executor.
A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit paused both judges’ orders. However, the full D.C. Circuit – by a vote of 7-4 – lifted those orders, allowing Harris and Wilcox “to continue exercising the President’s executive power over the President’s express objection,” the Trump administration contends.
Humphrey’s Executor does not bar the president from removing members of the MSPB and NLRB, Sauer asserted in his filing on Wednesday. In Humphrey’s Executor, Sauer explained, the court “recognized a narrow exception to the President’s removal power that, properly construed, extends only to ‘multimember expert agencies that do not wield substantial executive power.’” But that is exactly what the MSPB and the NLRB do, Sauer insisted, by “implementing and enforcing federal labor and civil-service laws.”
Lower courts, in ordering reinstatement of Harris and Wilcox, contended that Humphrey’s Executor is still good law, and they could not overrule it. The Supreme Court cautioned, the government continued, in Seila Law that Humphrey’s Executor is not a “freestanding invitation for Congress to impose additional restrictions” on the president’s power to remove executive officials.
But if for-cause removal laws like the ones at issue in these cases are constitutional under Humphrey’s Executor, Sauer added, it plans to ask the Supreme Court to “hold, after receiving full briefing and argument,” that the case was wrong and should be overturned. But in any event, Sauer noted, the district court’s orders should be put on hold for now even under a “narrower reader” of Humphrey’s Executor.
And in any event, Sauer continued, a stay of the orders by Contreras and Howell is also warranted because federal courts do not have the power to order the return of agency heads fired by the president – in fact, no court has ever done so until this year. The courts’ intervention in these cases, Sauer wrote, “has thus thrown the NLRB’s and MSPB’s operations into chaos, cast a cloud on the lawfulness of the agencies’ actions, left the President and the Senate uncertain about whether and when they may install new officers to succeed” Wilcox and Harris, and “undermined ‘the steady administration of the laws’ that” the Constitution “seeks to secure.”
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
Two new cases were granted on Monday from the rolls of relisted cases. First, as I pledged in my last post
, I am only too happy to eat crow
after predicting that the court would not take one-time relist Villarreal v. Texas
to answer the question whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess. So the court will be revisiting that issue for the first time since I graduated from college
over 35 years ago. But that bad prediction – I swear I was just trying to goad the court into granting – is offset at least in part by the fact that the court finally granted in Ellingburg v. United States
, a four-time relist for which “I rate[d] the odds of a grant
” to be “high,” and which will address whether criminal restitution under the Mandatory Victim Restitution Act
is penal for purposes of the Constitution’s ex post facto clause.
Moving on: There are 202 petitions and applications that have been scheduled for this week’s conference. The justices will be discussing three of them for a second time.
Contrary to the occupation you might be expecting based on her last name
, Lebene Konan is a landlord who owns rental properties in Euless, Texas. She alleges that U.S. Postal Service employees intentionally refused to deliver mail to her properties, causing tenants to move out and costing her at least $50,000 in rental income, plus emotional distress and the hassle of chasing down bills via FedEx.
Konan sued the USPS under the Federal Tort Claims Act, asserting claims under Texas law for nuisance, tortious interference, conversion, and intentional infliction of emotional distress. The FTCA generally waives sovereign immunity for torts by federal employees, but its postal exception
preserves immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” The question is whether Konan’s claims, based on allegations of intentional nondelivery, fall within “loss” or “miscarriage” or instead slip through the cracks.
The district court dismissed Konan’s claims, finding them barred by the postal exception. It reasoned that “loss” and “miscarriage” cover intentional acts, as the statute only qualifies “transmission” with “negligent.” But the U.S. Court of Appeals for the 5th Circuit reversed
, holding that the exception doesn’t apply to intentional nondelivery. The panel argued that “loss” implies unintentional destruction or misplacement, and “miscarriage” requires some attempt at carriage (like delivering to the wrong address). Becaues Konan alleged that USPS had deliberately refused to deliver the mail, her claims didn’t fit within the exception. The 5th Circuit acknowledged it was breaking ranks with the U.S. Courts of Appeals for the 1st, 2d and 8th Circuit, creating a circuit split sharper than a letter opener.
In United States Postal Service v. Konan
, the government now seeks review. It notes the acknowledged circuit split, argues that “loss” and “miscarriage” are sufficiently broad to encompass claims of intentional nondelivery, and argues that langauge in the Supreme Court’s decision in Dolan v. USPS
indicates that immunity covers situations when mail “fails to arrive at all.” The 5th Circuit’s reading, the solicitor general contends, creates a loophole allowing plaintiffs to dodge the exception by alleging intent, inviting a flood of lawsuits against an entity that delivers 318 million pieces of mail daily.
Opposing review, Konan defends the 5th Circuit’s reasoning, says the cases in the split implicate only theft (not refusal to deliver), and emphasizes the rarity of such lawsuits.
In an unusual move, Konan, reprented by the Stanford Law School Supreme Court Litigation Clinic, has filed a conditional cross-petition (Konan v. United States Postal Service
) seeking review of portions of the 5th Circuit opinion in which the Postal Service prevailed. Konan argues that the 5th Circuit is the lone court on the wrong side of a split in holding that the statute that prohibits conspiracy to violate civil rights, 42 U.S.C. § 1985(3)
, does not apply to federal officials. And Konan argues that the 5th Circuit also erred (and walked into a three-way circuit split) when it held that under Section 1985(3), employees of the same entity cannot be deemed to “conspire” because their conduct is attributed to a single employer (the so-called “intracorporate conspiracy doctrine”).
The government doesn’t deny the split, arguing instead that it warrants further percolation because most of the cases in it predate a 2017 Supreme Court opinion
saying that there are “sound reasons to conclude that … agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under § 1985(3).” The government also says there are several record-specific reasons to believe Konan should lose.
I rate the USPS petition a likely grant (which also explains the Stanford Clinic’s involvement in the case). Konan’s cross-petition is too hard to handicap.
Now on to First Choice Women’s Resource Centers, Inc. v. Platkin
. First Choice Women’s Resource Centers is a New Jersey faith-based nonprofit that provides services to women facing unplanned pregnancies. In 2023, New Jersey Attorney General Matthew Platkin issued a subpoena demanding extensive records from First Choice, including donor information and internal communications. The attorney general’s office initiated this investigation under the New Jersey Consumer Fraud Act, saying it suspected that First Choice might be misleading women about offering abortion services.
First Choice challenged the subpoena in federal court, asserting that the demand infringed upon its First Amendment rights by potentially chilling free speech and association. A federal district court dismissed the case, deeming it unripe – that is, not yet ready for a court to review – because the state had not yet enforced the subpoena. The U.S. Court of Appeals for the 3rd Circuit affirmed. Subsequently, the New Jersey Superior Court ordered First Choice to comply with the subpoena, threatening sanctions for non-compliance.
First Choice returned to federal court, but the district court again dismissed the case, maintaining that the claims were still not ripe for adjudication. A divided panel of the 3rd Circuit affirmed
in a non-precedential summary opinion. The majority held that First Choice’s First Amendment claims were not ripe. It reasoned that First Choice could continue to assert its constitutional claims in state court as that litigation unfolds, and it noted that the parties had agreed to negotiate to narrow the subpoena’s scope and the attorney general was now seeking donor information from only two websites.
Judge Stephanos Bibas dissented, saying he would find First Choice’s constitutional claims ripe because he believed that the case was indistinguishable from Americans for Prosperity Foundation v. Bonta
, in which the Supreme Court invalidated under the First Amendment a California law requiring charitable organizations to disclose their principal donors to the attorney general’s office.
First Choice now petitions for review. It argues that there is a circuit split on the question when litigants can bring federal challenges to state investigatory demands. It argues, supported by eight amicus briefs
, that such investigatory demands have a chilling effect on First Amendment rights.
In opposition, the New Jersey argues that the 3rd Circuit’s unpublished summary decision did not adopt a categorical rule on either side of the split. And it argues that the case is “an especially poor vehicle” because of its idiosyncratic facts – and in particular, the fact that the state is only seeking information for donors who contributed via websites “that do not include references to [First Choice’s] mission and operations.” The state argues that First Choice’s claims are “factbound,” and the brief unpublished decision will not have broad effects.
We should have a better sense soon whose version of events the justices find more persuasive. Until next time!
New Relists
United States Postal Service v. Konan
, 24-351 Issue: Whether a plaintiff’s claim that she and her tenants did not receive mail because Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter. 28 U.S.C. 2680(b).
(Relisted after the April 4 conference.)
Konan v. United States Postal Service
, 24-495 Issues: (1) Whether federal employees can be liable under the Ku Klux Klan Act; and (2) whether or under what circumstances the intracorporate conspiracy doctrine — which holds that employees of the same entity cannot be liable for conspiracy — applies to the act.
(Relisted after the April 4 conference.)
First Choice Women’s Resource Centers, Inc. v. Platkin
, 24-781 Issue: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?
(Relisted after the April 4 conference.)
Returning Relists
Apache Stronghold v. United States
, 24-291 Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act
, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)
Ocean State Tactical, LLC v. Rhode Island
, 24-131 Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)
Snope v. Brown
, 24-203 Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)
L.M. v. Town of Middleborough, Massachusetts
, 24-410 Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, March 7, March 21, March 28 and April 4 conferences.)
Cunningham v. Cornell University will not go into the history books as one of the most important 30 decisions of the 2024-25 term. The case involves a technical problem about pleading standards under the Employee Retirement Income Security Act, and the court’s resolution of the problem was, in a word, technical.
ERISA establishes a series of detailed rules to deal with retirement plans, much of which tracks traditional rules of trust law. Among those rules, not surprisingly, is a rule that prevents any transaction between the plan and an insider of the plan. To be specific, the rule (in Section 1106) says that, “[e]xcept as provided in Section 1108,” the fiduciary of the plan “shall not cause the plan to [transact with a] party in interest.” Section 1108, in turn, has an exemption that permits “reasonable arrangements with a party in interest … if no more than reasonable compensation is paid therefor.”
The problem is that the definition of “party in interest” is quite broad, including among other things all entities “providing services to [the] plan.” To read Section 1106 with that definition in mind, you would conclude that it violates Section 1106 to transact with any entity that is providing services to the plan. In this case, for example, beneficiaries sued Cornell to complain about transactions with Fidelity and the Teachers Insurance Annuity Association.
The question the courts are grappling with is whether the beneficiaries can state a complaint merely by alleging that Cornell has violated Section 1106 itself – by transacting with somebody from whom it is buying services – or whether they also must allege that the transaction is not protected by Section 1108, perhaps because compensation for those services is unreasonably high.
Justice Sonia Sotomayor’s opinion
picks the first approach. She explains that the relevant part of Section 1106 includes three elements: (1) causing the plan to engage in a transaction; (2) that “constitutes … furnishing of … services”; (3) “between the plan and a party in interest.” She observes that the exemptions for reasonably priced transactions are “set forth in a different part of the statute” and so “do not impose additional pleading requirements to set out a … claim.” She says that the proper method of proceeding is for the plaintiff to point to the transaction with the service provider, and for the service provider in turn to point out any particular exemption that might protect it.
Sotomayor relies on a “well settled general rule of statutory construction that the burden of proving … exemption … to the prohibitions of a statute generally rests on one who claims its benefits.” For her, the exceptions in Section 1108 are “written in the orthodox format of an affirmative defense,” and so “must be pleaded and proved by the defendant who seeks to benefit from them.” She relies heavily on “[s]tructural considerations,” noting that Section 1108 has more than 20 separate exceptions from the standard rules in Section 1106. It would make no sense to require a plaintiff, in every case, to disprove each of those exceptions, as “fairness usually requires that the adversary give notice of the particular exception upon which it relies and therefore that it bear the burden of pleading” the particular exception.
The most important part of the opinion is the last few pages, where Sotomayor grapples with the reality that the court has validated a rule that will allow a plaintiff to survive a motion to dismiss merely by alleging that a plan fiduciary has purchased something from an entity from whom it purchases things. She acknowledges that concerns about such a low threshold are “serious,” but she suggests three tools courts should use to mitigate them. First, district courts under Rule 7 could require the plaintiff to file a reply including “specific, nonconclusory factual allegations” to rebut any exemption that the defendant might interpose. Second, courts would be free to dismiss a suit that failed to identify any injury from the transaction – and there would be no injury if the transactions were reasonably priced. Third, “in cases where an exemption obviously applies, … Rule 11 may permit a district court to impose sanctions” on the plaintiff and its counsel.
The justices needed to resolve this case because lower courts had offered differing solutions to the conundrum, and pleading standards for ERISA should be the same nationwide. I doubt it will have broad significance in the future, but it will offer a useful roadmap for trial courts having to deal with these cases on the ground. I suspect that is the reason the case was assigned to Sotomayor, a former trial judge.
Over a dissent by two of the court’s conservative justices, the Supreme Court temporarily barred the Trump administration from removing a group of Venezuelan men currently in immigration custody in the northern region of Texas under an 18th century wartime law. The prohibition came in an unusual overnight order
that followed a Friday evening appeal
from lawyers representing the men, who told the justices that “dozens or hundreds” of detainees “are in imminent and ongoing jeopardy of being removed from the United States without notice and opportunity to be heard, in direct contravention of” a ruling by the justices less than two weeks ago.
In a brief unsigned order released to reporters just before 1 a.m. Saturday morning, the court noted that the dispute “is currently pending before” the U.S. Court of Appeals for the 5th Circuit. Once that court acts, the court explained, Solicitor General D. John Sauer should file a response in the Supreme Court to the detainees’ request to block their removal “as soon as possible.” (After the justices issued their order, the 5th Circuit turned down the detainees’ request for a stay, calling it “premature.”) But, the court emphasized in clear language, the government should not “remove any member of the putative class of detainees from the United States until further order of this Court.”
Justices Clarence Thomas and Samuel Alito dissented from the court’s order. They did not provide any explanation for their votes on Saturday morning, but the order indicated a statement from Alito would follow – a relatively rare move, but not unprecedented in light of the hour at which the order was issued and the speed with which the court acted.
The dispute is the latest chapter in the challenges to the Trump administration’s efforts to remove noncitizens who are designated as members of a Venezuelan gang under a March 15 executive order issued by President Donald Trump. The order relied on the Alien Enemies Act, a 1798 law that allows the president to detain or deport citizens of an enemy nation without a hearing or any other review by a court if Congress declares war or there is an “invasion” or “predatory incursion.” The law has only been invoked three times in U.S. history, during the War of 1812, World War I, and World War II.
Trump’s March 15 order found that a large Venezuelan gang known as Tren de Aragua is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” As a result, he ordered, any Venezuelans who are 14 years of age or older can be “apprehended, restrained, secured, and removed as Alien Enemies.”
A group of noncitizens in immigration custody went to federal court in Washington, D.C., even before Trump’s order was issued, seeking to stave off their removal and to challenge their designation under the Alien Enemies Act.
Their case was assigned to U.S. District Judge James Boasberg, who barred the government from removing the individual plaintiffs in the case and, later, anyone else under the Alien Enemies Act. In a hearing on the same day that the order was issued, Boasberg ordered the government to return any flights to remove noncitizens that had already taken off to return to the United States.
News reports indicated that more than 200 noncitizens were taken from the United States to El Salvador on March 15, with their planes landing there after Boasberg issued his written order. They were taken to El Salvador’s notorious Terrorism Confinement Center (CECOT), a maximum-security “mega” prison, where their heads were shaved.
After the U.S. Court of Appeals for the District of Columbia Circuit turned down the Trump administration’s request to pause Boasberg’s order, then-Acting Solicitor General Sarah Harris went to the Supreme Court. She told the justices that the dispute “presents fundamental questions about who decides how to conduct sensitive national-security operations in this country – the President . . . or the Judiciary.”
In a ruling on April 7
, the Supreme Court granted the Trump administration’s request to put Boasberg’s order on hold. It explained that challenges to a designation under the Alien Enemies Act must be brought as a petition for habeas corpus – that is, a challenge to the legality of an individual’s detention – in the place where the detainees are being held (here, northern Texas), rather than in Washington as a challenge under the federal law governing administrative agencies.
The court also indicated that anyone detained under the Alien Enemies Act “must receive notice after the date of this order that they are subject to removal under the” law. Moreover, the court added, the government must provide that notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
The detainees went to court in the Northern District of Texas on April 16, asking a federal judge there to temporarily block the removal of Venezuelan men in immigration custody there under the Alien Enemies Act.
U.S. District Judge James Wesley Hendrix, a Trump appointee, on Friday rejected the men’s request to block their removal under the AEA, after the government told the court that it would not try to remove the two men individually named in the complaint while their habeas petitions are pending. Hendrix indicated that in light of the Supreme Court’s April 7 ruling and “the government’s general representations about the procedures necessary in these cases,” the broader group of Venezuelan detainees is likely “also not facing such an imminent threat.”
But since then, lawyers for the detainees wrote, Venezuelan men in immigration custody in Texas have been notified that their removal under the AEA could be imminent. “Removal without sufficient notice and time to seek habeas relief,” the lawyers contended, “is in clear violation of” the Supreme Court’s April 7 ruling. The government, the lawyers said, has established a “lightning-fast timeline.” Moreover, they noted, to the extent that the government has notified the men of its intent to remove them, those notices are only in English – even though the “overwhelming number of people designated under the AEA speak only Spanish” – and do not tell the men that they can challenge their designation as “alien enemies” in federal court. The government also is not providing any notification to the men’s lawyers, they added.
“Emergency relief is necessary,” the lawyers emphasized, “not only to preserve the status quo and prevent permanent and irreversible harm” to the men currently in immigration custody who would be covered by the court’s order, “but also to preserve the court’s jurisdiction, in light of the government’s position that it need not return individuals, even those mistakenly removed” – a reference to the case of Kilmar Abrego Garcia, a Maryland man whom the Trump administration concedes was deported to El Salvador as a result of an administrative error.
The lawyers for the Venezuelan men stressed that they did not seek to stop the government from prosecuting anyone who has committed a crime or removing anyone who can be legally removed under federal immigration laws. They were seeking, they said, only to have the Supreme Court “preserve the status quo so that proposed class members will not be sent to a notorious prison in El Salvador before the American judicial system can afford them due process.”
The Trump administration is likely to file its response to the detainees’ appeal soon; the detainees will then have the opportunity to file a reply. The Supreme Court could then act on the detainees’ request at any time.
The Supreme Court on Monday morning added one new case, involving a Texas woman’s claim against the U.S. Postal Service, to its docket for the 2025-26 term. The announcement came as part of a list of orders
from the justices’ private conference on Thursday, April 17.
The court granted U.S. Postal Service v. Konan, in which the U.S. Court of Appeals for the 5th Circuit ruled that the exception to the Federal Tort Claims Act for claims that “arise out of the loss” or “miscarriage” of “letters or postal matter” does not apply to claims that stem from a USPS employee’s intentional failure to deliver mail to a designated address. (John Elwood discussed the case in more detail in his Relist Watch column
last week.)
The justices also asked the Trump administration for its views in a case brought against Home Depot
under the Employee Retirement Income Security Act. There is no deadline for the solicitor general to file his brief on behalf of the government.
In the two-and-a-half months since Donald Trump’s inauguration, a rush of challenges to executive orders and directives have made their way through the courts and have now started to reach the justices in earnest. Alongside those orders, Trump fired the heads of several independent government agencies, experts who oversee technical matters of government including the enforcement of antitrust laws and review of federal workers’ challenges to their dismissals. Although the president can remove most government officials for any reason, those positions are protected by Congress from firing without good cause, such as “malfeasance in office,” and by a 1935 Supreme Court case that upheld such for-cause limits.
But some conservative legal scholars, and the president, have embraced a much broader view of executive power, one in which the president has complete authority to fire agency heads. The administration has indicated that it will ask the Supreme Court to overturn a 1935 decision, Humphrey’s Executor v. United States, which would allow the president to do just that. In that decision, the court barred Franklin Delano Roosevelt from firing a Republican member of the Federal Trade Commission. The decision protects the heads of independent, multimember agencies from unjustified removal to allow the agencies to function without the threat of political retaliation.
On Monday, the U.S. Court of Appeals for the District of Columbia Circuit ordered the Trump administration to reinstate Cathy Harris, of the Merit Systems Protection Board, and Gwynne Wilcox, of the National Labor Relations Board. Harris and Wilcox were fired in February and argue that they were illegally removed without the cause that the law requires. The federal government appealed to the Supreme Court on Wednesday, and just hours later Chief Justice John Roberts put both reinstatements on hold while the court considers the request.
I spoke recently with Stephen Vladeck, a professor at Georgetown University Law Center and close observer of the recent rise of the court’s emergency docket. His book on the subject is called The Shadow Docket. We discussed how likely the current court is to overrule Humphrey’s Executor and what might stand in its way, even as the majority has embraced an expansive view of executive power.
Our conversation was conducted by phone and email and has been edited for clarity.
Back in February, then-Acting Solicitor General Sarah Harris wrote in a letter to Congress that the Trump administration planned to challenge Humphrey’s Executor, is there a history of presidents ignoring or pushing that precedent since the 1930s?
The short answer is no. Obviously opposition to Humphrey’s Executor has become something of a cause célèbre especially among conservative judges and scholars, but this is the first time I think we’ve seen the justice department specifically take the position not just that it’s wrong, but that it should be overruled.
What about FDR, where does the case come out of?
FDR took the position that, under the Supreme Court’s 1926 ruling in Myers
, he had the unencumbered power to remove anyone on the Federal Trade Commission and the Supreme Court said he was wrong. The Supreme Court in Humphrey’s Executor unanimously upheld the for-cause removal limitations that Congress had written into the FTC act.
So at least since 1935, presidents of both parties have labored under the assumption that that’s at least good law, whether or not it’s rightly decided, and so have not attempted to remove members of the FTC or the NLRB, or perhaps even more importantly the Federal Reserve, without at least some argument that they met the relevant statutory requirements of good cause.
Was there any analogous protection for that relationship between Congress and the executive before the New Deal era?
Congress had started putting in for-clause removal restrictions long before FDR came along. I think it was just that FDR was, if not the first president, certainly the most vocal president about the scope of a president’s constitutional removal powers. In some respects, I think it was the Supreme Court that changed things when it handed down Myers. Because there’s language in Chief Justice Taft’s majority opinion in Myers that for the first time opened the door to arguments that for-cause removal restrictions were generally unconstitutional. So if we’re building the chronology, the restrictions existed, and then Myers comes along and suggests, perhaps inartfully, that all of them might be unconstitutional. And then Humphrey’s Executor was basically the test case for that proposition.
Interesting that Taft was the one that comes under.
There’s a profound historical irony in the fact that it’s the only president to ever serve on the court who’s in a position in Myers to endorse a very very broad and indefeasible presidential removal power.
So back to where Humphrey’s Executor sits today, how narrow are those protections?
One of the tricky things about Humphrey’s Executor is that, even though the Supreme Court hasn’t overruled it, it has to at least some degree reconceptualized it. Humphrey’s Executor itself, if you read Justice Sutherland’s opinion, spends a lot of time talking about how what the FTC does is not purely executive power. Instead, he talks about the quasi-judicial role that the FTC plays and even in some respects, the quasi-legislative role that the FTC plays.
Even though the modern court has not overruled Humphrey’sExecutor, it has really, I think, heavily watered down that understanding. Indeed, it has increasingly come to treat Humphrey’s Executor as this extreme outlier — as one of two Supreme Court precedents that are at least superficially inconsistent with the broad view of the unitary executive toward which the court has otherwise gravitated, Morrison v. Olsonbeing the other.
So the Supreme Court today basically takes the view that there’s Morrison, there’s Humphrey’s Executor and there’s nothing else. And that was the basis for the court’s 2020 ruling in Seila Law
that Congress could not insulate the head of the Consumer Financial Protection Bureau from presidential removal because, unlike the head of these multi-member commissions, the head of the CFPB is a single person.
In a world in which we were being faithful to the analysis of Humphrey’s Executor and not just the result, it shouldn’t make a difference whether the head was a single person or a multimember board; all that would matter is the type of power that the agency was wielding. But in a world in which Humphrey’s Executor and Morrison are nothing more than exceptions to the rule, then all of the litigation tends to reduce to whether the agency structure at issue is just like the exceptions or not.
You mentioned the Fed before, where does the Fed stand?
Part of why I believe that even this court has been reluctant to overrule Humphrey’s Executor, and it’s had chances, is because I think there is an unspoken but widely shared view that the independence of the Fed (and no other agency) is really important. I don’t think the court has yet been provided with a coherent rationale for a way in which it could overrule Humphrey’s Executor without also undermining the independence of the Fed, and thereby risking yet further harm to the stability of our economic system.
Of course, these cases are not just about the FTC and the Fed — there are a bunch of multimember-headed agencies, the SEC, the FCC, the Merit Systems Protection Board, etc., that are implicated by Humphrey’s Executor. But I think the real 800-pound gorilla is the Fed. Maybe it’s enough to just assert that the Fed is different, but at least to this point, there’s been no persuasive explanation for why, legally, that’s so.
But given how the court has handled what’s come to them so far from the Trump administration, is the field wide open for them to take on Humphrey’sExecutor?
I think two things can be true. One, I think the court would rather not have to decide one way or the other. And two, I think the Wilcox and Harris cases were always going to force the court to take up the question.
Do you have a sense of where the justices stand individually on this?
I don’t doubt that there are more than two votes to overrule Humphrey’s Executor. But, to me, the most important data point here is that the court has thus far resisted invitations to do so. And if the court were in a hurry to overrule Humphrey’s Executor, I think it would have already.
Maybe that was just because it didn’t have to face the issue; maybe there are five or more votes on the merits. But if the theory is correct that at least some of the justices’ reticence is because they don’t want to undermine the independence of the Fed, at least so far, no one has been able to square that circle.
On Wednesday, the chief justice moved very quickly to pause the district court’s orders that had reinstated Harris and Wilcox, just hours after the administration appealed to the court. Does that tell us anything? What do you have your eye on for what happens next?
I think it tells us two things — first, that the chief justice may have been a bit exasperated by the ping-pong nature of the proceedings in the lower courts, where Harris and Wilcox were fired, then not fired, then fired, then not fired again. And second, it strongly suggests to me that the court is going to use these cases to resolve the Humphrey’s Executor question — perhaps not by answering it through the Trump administration’s emergency application, but by taking up the government’s request that it treat the application as a petition for certiorari before judgment, and take up these cases for plenary review on an expedited basis now. If nothing else, it seems increasingly likely that the fate of Humphrey’s Executor will be resolved before the justices rise for their summer recess.
The Supreme Court will hear oral arguments on Monday in yet another dispute over the separation of powers. The case is a challenge to the constitutionality of the structure of a relatively obscure section of the Department of Health and Human Services. But although the issue may sound like a technical one, the court’s ruling could have real-world implications for U.S. patients – particularly those who use the highly effective HIV-prevention drugs at the center of the dispute.
Under the Affordable Care Act, health insurers and group health plans must cover “preventive health services” at no additional cost to the patient. The Affordable Care Act does not specify what those “preventive health services” are. Instead, the law gives the U.S. Preventive Services Task Force – an independent panel of experts – the power to determine which preventive services insurers must cover.
The task force is made up of 16 volunteers, each of whom serves a four-year term. Members of the task force and their recommendations are required by law to be “independent, and to the extent practicable, not subject to political pressure.”
The task force’s recommendations for required preventive-care services include contraception, cancer screenings, statin medications, and human-papilloma-virus vaccines. In June 2019, the task force recommended that pre-exposure prophylaxis, known as PrEP, medicine that is highly effective at preventing HIV, be included as a mandatory preventive-care service.
The plaintiffs in this case are four individuals and two small businesses that have religious objections to the requirement that insurers and group health plans provide coverage for PrEP. They believe the drug coverage “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.” The lead plaintiff, Braidwood Management, is a Christian-owned business that provides health insurance to its 70 employees.
In March 2020, the plaintiffs filed a lawsuit in federal court in Texas. They argued (among other things) that the structure of the task force violates the Constitution’s appointments clause, which requires “principal officers” of the United States to be appointed by the president and confirmed by the Senate.
U.S. District Judge Reed O’Connor agreed. He ruled that all preventive-care coverage requirements that the task force had imposed since March 23, 2010, when then-President Barack Obama signed the Affordable Care Act, were invalid. And going forward, O’Connor prohibited the government from implementing or enforcing the act’s preventive-services coverage requirements.
The U.S. Court of Appeals for the 5th Circuit upheld O’Connor’s ruling that the structure of the task force violates the appointments clause. But it disagreed with his decision to invalidate all of the task force’s past mandates, and to bar the task force from enforcing mandates going forward. Therefore, it concluded, the government should only be prohibited from enforcing the preventive-services coverage requirements against Braidwood and the other challengers.
The Biden administration came to the Supreme Court in September 2024, asking the justices to weigh in, which they agreed in January to do.
In its brief on the merits, the Trump administration defended the structure of the task force. The members of the task force, it told the justices, are not principal officers but instead “inferior” officers, who do not require presidential appointments or Senate confirmation: The HHS secretary has appointed all 16 members of the current task force, those task force members can be removed at any time by the HHS secretary, and the secretary can review the task force’s recommendations and block them from having “legal force under the ACA before those recommendations have binding effect.” “Taken together,” then-Acting Solicitor General Sarah Harris wrote, “those controls give the Secretary, not the Task Force, ultimate responsibility for whether Task Force recommendations become final, binding decisions” – and in doing so, “create a chain of supervisory accounting through the Secretary to the President”
But even if the members of the task force were “principal” officers who should have been nominated by the president and confirmed by the Senate, Harris continued, the remedy for that violation should be to invalidate only the provision that the court of appeals interpreted as barring review of the task force’s recommendations, leaving the rest of the statutory scheme in place. Going forward, Harris suggested, the task force would therefore be allowed to “make recommendations that will have legal effect only under appropriate supervision by the Secretary.”
Braidwood Management and the other plaintiffs are represented by Jonathan Mitchell, the conservative lawyer who (among other things) argued on behalf of then-candidate Donald Trump in his successful challenge to Colorado’s effort to remove him from the 2024 presidential ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol.
Braidwood countered that members of the task force cannot be “inferior officers,” and are instead “principal officers,” who must be appointed by the president and confirmed by the Senate, precisely because federal law requires that both they and their recommendations remain independent and insulated from political pressure.
Even if members of the task force could be removed at will, Braidwood continued, they still are not inferior officers because their decisions about which preventive-care services must be covered under the ACA “are not subject to review or reversal by anyone.” The prospect that the HHS secretary can later prevent the task force’s recommendations from having binding effect does not undermine their status as principal officers, Braidwood added, because insurers are required to follow the recommendations “even if the Secretary purports to veto or override its decisions.”
And if the task force members are principal officers, Braidwood concluded, the Supreme Court cannot fix the constitutional violation by invalidating only part of the statutory scheme, as the government suggests. That proposed solution, Braidwood emphasized, would allow the HHS secretary to override the task force’s recommendations, but it would still give the task force unbridled discretion to decide not to require insurers to cover items or services. Moreover, Braidwood added, the government’s proposal would not do anything to address the recommendations that the task force issued between March 2010, when the ACA went into effect, and June 2023, when then-HHS Secretary Xavier Becerra reappointed the members of the current task force.
“Friend of the court” briefs supporting the government cautioned that the impact of a ruling for the plaintiffs on public health could be substantial or even “staggering.” One brief, by the American Hospital Association, suggested that if patients are required to pay for the preventive-care services that are currently available at no cost to them, they may respond by not seeking those services or medications at all.
Addressing PrEP, the medicine at the center of this dispute, specifically, a brief by public health groups focused on HIV and AIDS noted that the drug has “significantly decreased the rates of new HIV infections across the United States.” If patients no longer have no-cost access to PrEP, the groups said, it will both “thwart ongoing efforts to wipe out HIV in the United States” and “ultimately erase much of the progress that has been made to date.”
And a group led by the Susan G. Komen Breast Cancer Foundation similarly warned that if the justices uphold the 5th Circuit’s ruling and limit the availability of preventive-care services, it could increase “(1) the risk of breast cancer progressing to more advanced stages; (2) treatment costs; and (3) the risk of breast-cancer-related deaths.”
Briefs filed in support of Braidwood downplayed the concerns about the effects of a ruling in Braidwood’s favor as “overstated.” A group of states, led by Texas, first posited that because providing these kinds of preventive-care services will ultimately reduce an insurer’s costs, there is no need for a task force to require insurers to make them available. And in any event, the states add, the constitutional problem could be eliminated entirely going forward by having the president nominate members of the task force and the Senate confirm them. “And to the extent that the Task Force members’ nominations may be controversial and so prompt greater debate in the Senate, that point cuts in favor of requiring their confirmation, not against it,” the states concluded.
The Goldwater Institute, a policy and research group that describes its mission as “advancing the principles of limited government, individual freedom, and constitutional protections,” added that the arguments about the potential effects of a ruling for Braidwood are in essence “a policy judgment” that is best “properly addressed to Congress,” rather than the courts.
A decision is expected by late June or early July.
