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Trump v. Wilcox, 605 U.S. __, 145 S. Ct. 1415 (2025)
William Perryman*
I. Introduction
On May 22, 2025, the 6-3 supermajority of the Supreme Court granted an emergency application for a stay, a procedural maneuver that effectively enabled President Donald Trump to dismiss National Labor Relations Board (“NLRB”) Member Gwynne Wilcox despite statutory protections against removal without cause.[1] This immediate action left the NLRB without a quorum, thereby halting crucial federal labor law proceedings.[2] The Court’s utilization of its emergency docket suggests that it views the unitary executive theory not merely as a preferred interpretation, but as an urgent constitutional imperative, justifying the circumvention of traditional deliberative processes and established norms of judicial review.[3]
The implications of Trump v. Wilcox extend far beyond the immediate legal outcome. Justice Kagan, in a forceful dissent, underscored that the ruling directly undermines the long-standing precedent established by Humphrey’s Executor v. United States, 295 U.S. 602 (1935), a landmark case that has guided the structure of independent agencies for ninety years.[4] The Supreme Court reversing decades of precedent through an expedited, non-transparent process risks eroding the perception of judicial impartiality and the stability of constitutional law, potentially leading to decreased public trust in the judiciary as a neutral arbiter.[5] This Article argues that the Trump v. Wilcox majority’s assertion that the NLRB and Merit Systems Protection Board (“MSPB”) exercise “considerable executive power”—a phrase left undefined and unsubstantiated—reveals an inconsistent jurisprudence.[6] This lack of a coherent framework for identifying “executive power,” coupled with a selective reliance on “history and tradition” for the Federal Reserve, suggests a judicial philosophy driven more by a desire to expand presidential control than by a consistent understanding of Article II.[7]
II. Facts and Holding
The case of Trump v. Wilcox arose from President Donald Trump’s unilateral decision on January 27, 2025, to dismiss both Gwynne Wilcox from her position as a member of the NLRB and Cathy Harris from the MSPB.[8] These removals were effected via email, without citing “neglect of duty or malfeasance,” which are the statutorily mandated grounds for removal under the National Labor Relations Act (“NLRA”).[9] The Administration asserted that these dismissals were within the President’s inherent executive power, thereby challenging the long-standing statutory for cause removal protections for these independent agency officials.[10]
In response to their removals, both Gwynne Wilcox and Cathy Harris initiated separate lawsuits in the United States District Court for the District of Columbia.[11] They sought declaratory and injunctive relief, challenging their terminations as unlawful because they were executed without the statutorily required cause, thus violating federal law, including the Administrative Procedure Act (“APA”), and the Constitution.[12] On March 4 and March 6, 2025, respectively, Chief Judge Beryl A. Howell (in Wilcox’s case) and Judge Rudolph Contreras (in Harris’s case) granted summary judgment to the Members.[13] Both district courts concluded that the removals were unlawful under the respective statutes and, relying on the precedent of Humphrey’s Executor, issued permanent injunctions ordering the reinstatement of Wilcox and Harris to their positions.[14]
The Government promptly appealed these injunctions to the United States Court of Appeals for the District of Columbia Circuit and simultaneously filed emergency motions for stays pending appeal.[15] On March 28, 2025, a three-judge panel of the D.C. Circuit granted the Government’s motions, temporarily allowing the President’s dismissals to stand.[16] Just days later, however, on April 7, 2025, the full D.C. Circuit sitting en banc reversed the panel’s decision, vacating the stays and denying the Government’s motions for stay pending appeal.[17] This en banc ruling effectively reinstated the district court’s permanent injunctions, ordering Wilcox and Harris back to their respective Boards.[18]
The Government then filed an emergency application for a stay with the Supreme Court of the United States, seeking to block the D.C. Circuit’s order and prevent Wilcox and Harris from resuming their duties.[19] The Court held that the Government was “likely to succeed on [the] merits of its claim that President’s executive power allowed him to terminate the Members without cause.”[20] The Court’s terse explanation for granting the stay was that it reflected a judgment that the Government was likely to show that both the NLRB and MSPB exercise “considerable executive power.”[21] Furthermore, the Court reasoned that the “Government faced greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faced from being unable to perform her statutory duty,” favoring a stay to avoid “the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.”[22]
III. Legal Background
The constitutional framework for executive power is rooted in Article II, Section 1, Clause 1 of the U.S. Constitution, which vests “the executive Power” in the President.[23] The precise scope of this power, however, particularly concerning the President’s authority to control and remove officers within the executive branch, has been a perennial source of jurisprudential debate.[24]
The unitary executive theory posits that all executive power resides in the President, who must therefore possess plenary authority to direct and remove all officers executing federal law.[25] This theory is premised on the belief that such centralized control is essential for presidential accountability and constitutional fidelity as the President’s constitutional duty to “take Care that the Laws be faithfully executed” requires direct and unhindered authority over those who implement federal law.[26] Historically, the Supreme Court’s jurisprudence on presidential removal power has oscillated, attempting to balance this theoretical imperative with Congress’s Article I power to structure the government.[27]
In Myers v. United States, the Court held that the President possesses an inherent, unfettered power to remove executive officers, such as a postmaster.[28] This broad grant of presidential removal power appeared to align with a strong unitary executive vision. Just nine years later, however, Humphrey’s Executor marked a significant departure. In a unanimous decision, the Court upheld Congress’s power to insulate “quasi-legislative” and “quasi-judicial” officers of independent agencies, like a Federal Trade Commission commissioner, from at-will presidential removal.[29] The Court reasoned that such insulation was necessary for these officers to perform their duties impartially and without political interference, distinguishing their functions from the “purely executive” ones addressed in Myers.[30] Humphrey’s Executor provided the foundational legal justification for the independence of multi-member commissions and became a cornerstone of administrative law for nearly a century.[31]
The more recent case of Seila Law LLC v. Consumer Financial Protection Bureau signaled a renewed shift towards the unitary executive theory.[32] Chief Justice Roberts, writing for the majority, held that the structure of the Consumer Financial Protection Bureau (“CFPB”), led by a single director removable only “for cause,” violated the separation of powers.[33] Roberts narrowly construed Humphrey’s Executor, limiting its application to multi-member bodies performing “no part of the executive power” as he redefined it.[34] He emphasized the CFPB’s vesting with “significant executive power,” including rulemaking, enforcement, and adjudication, and its single-director structure as incompatible with constitutional design.[35] Significantly, Justices Thomas and Gorsuch expressed a desire to overturn Humphrey’s Executor entirely, signaling the growing judicial appetite for broader presidential removal power.[36]
Amidst this evolving jurisprudence, the Federal Reserve Board (“the Fed”) has maintained a unique and largely unchallenged status as a highly independent agency. Its governors are removable only for cause, despite wielding immense financial and monetary policy authority that directly impacts the national economy and engages in extensive international coordination—functions that arguably constitute significant executive power.[37]
IV. Instant Decision
In Trump v. Wilcox, the Supreme Court issued an emergency stay that overturned lower court orders reinstating the removed NLRB and MSPB members.[38]
A. The Majority’s Reasoning
The majority’s rationale for granting the stay rested primarily on two interconnected points. First, the Court stated, “The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”[39] This assertion, central to deeming the President’s actions likely to succeed on the merits, implicitly accepted the Administration’s contention that the agencies’ functions fall within executive power, justifying at-will removal.[40] The Court, citing Seila Law, positioned these agencies within the scope of powers subject to direct presidential control, though it explicitly reserved a final ruling on whether they fell into “any recognized exception” for full briefing.[41]
Second, the majority weighed the balance of equities, finding “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.”[42] This assessment prioritized preventing perceived disruption from officials whose constitutional removability was under question. The Court aimed to “avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation,” reinforcing the urgency of allowing the President’s dismissals to stand.[43]
Finally, the majority briefly addressed the respondents’ argument concerning the Federal Reserve’s for-cause removal protections.[44] The Court distinguished the Fed, stating, “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.”[45]
B. Justice Kagan’s Dissent
Justice Kagan, joined by Justices Sotomayor and Jackson, fundamentally disagreed with both the majority’s substantive outlook and its procedural methodology.[46]
Kagan directly challenged the majority’s implicit narrowing or overruling of Humphrey’s Executor.[47] She asserted that Humphrey’s, “a nearly century-old precedent,” “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”[48] She emphasized that Humphrey’s explicitly held Congress could impose for-cause removal for “quasi-legislative or quasi-judicial” bodies, a conclusion that “cannot well be doubted.”[49] In her view, the NLRB and MSPB “fit securely within the ambit of Humphrey’s,” making the President’s no-cause firings unlawful under existing law.[50] She accused the President of “tak[ing] the law into his own hands” and the Court of effectively “bless[ing] those deeds.”[51]
Kagan vehemently criticized the use of the emergency docket for such a profound change in law.[52] She argued that the “emergency docket . . . should not be used to overrule or revise existing law,” especially since applications are handled “on a short fuse without benefit of full briefing and oral argument” and “without fully (or at all) stating our reasons.”[53] She distinguished granting relief for established rights from “skip[ping] the usual appellate process when issuing an order that itself changes the law,” particularly when it “disrespect[s] . . . one of this Court’s longstanding precedents.”[54]
The justice further critiqued the majority’s “unusual and unedifying” approach to the merits and its “misapprehen[sion]” of the balance of equities.[55] Kagan argued the majority’s “considerable executive power statement” merely “restates the question” without a necessary preliminary answer and warned that if it meant removing agencies from Humphrey’s protection, “it foretold a massive change in the law via the shadow docket.”[56] For the balance of equities, she countered that the interest was not the “wrongfully removed officer[s’],” but “Congress’s and, more broadly, the public’s interest” in independent agencies designed to serve the “long-term public good.”[57] She dismissed the President’s “crying need to discharge” these officers, noting that fourteen prior Presidents had lived with such restrictions.[58]
Finally, Kagan dismissed the majority’s carve-out for the Federal Reserve as a “puzzle,” arguing the Fed’s independence rests on the same “constitutional and analytic foundations” as other independent agencies, primarily Humphrey’s.[59] She found the majority’s Seila Law citation for a “bespoke exception” to be “no support,” concluding it was an attempt to “mak[e] new law on the emergency docket.”[60]
V. Comment
The Supreme Court’s grant of an emergency stay in Trump v. Wilcox is not merely a procedural action; it is a substantive pronouncement laden with significant implications for the separation of powers and the future of administrative law.[61] The Court’s reliance on the phrase “considerable executive power” as the linchpin for allowing the President to summarily remove independent agency officials, without providing a coherent definition or a robust analytical framework for its application, constitutes a jurisprudential void.[62] This vagueness is further exacerbated by the Court’s simultaneous willingness to carve out an exception for the Federal Reserve’s independence based on a selective appeal to “history and tradition”—a rationale inconsistently applied to the well-established “history and tradition” of independent agencies derived from Humphrey’s Executor.
The core of the Wilcox majority’s reasoning is the assertion that the NLRB and MSPB exercise “considerable executive power.”[63] The order does not clarify, however, what makes this power “considerable,” nor does it define the contours of “executive power” itself beyond the broad vesting clause of Article II. This imprecision is critical. The concept of “executive power” is notoriously difficult to define, encompassing a spectrum of governmental functions from pure law enforcement (like a prosecutor) to broad policy implementation, rulemaking, and adjudication.[64] The Wilcox majority’s shift from Seila Law’s “significant executive power” to “considerable executive power” for the NLRB and MSPB, without explanation, signals a fluid and perhaps expedient re-labeling rather than a precise legal standard. This fluidity allows the Court to expand presidential power without the intellectual rigor typically demanded of constitutional reinterpretation, especially one overturning decades of precedent.
The fragility of this undefined “considerable executive power” becomes acutely apparent when contrasted with the Court’s unique treatment of the Federal Reserve. The Fed is undeniably an entity wielding massive executive power.[65] Its authority to conduct monetary policy to supervise and regulate financial institutions, and to engage in critical international financial coordination, are governmental functions that directly “execute” federal law and profoundly impact the nation.[66] These are not merely “quasi-private” functions; they are vital, discretionary applications of policy with sweeping economic consequences, arguably far more “considerable” than the adjudicative and rulemaking powers of the NLRB or MSPB. Yet, Fed governors remain insulated from at-will presidential removal, protected by statutory for cause provisions, a fact Chief Justice Roberts himself explicitly reaffirmed in Seila Law and in Wilcox.[67]
The justification for this carve-out—“unique structure” and “the distinct historical tradition of the First and Second Banks of the United States”—is highly problematic for several reasons.[68] Roberts’s classification of the Federal Reserve as a “quasi-private entity” is conceptually unsound as a principled basis for its independence.[69] While the Fed does have some structural features that deviate from traditional executive agencies, its core functions are undeniably governmental and public. It performs a vital public service, exercises immense regulatory and policy-making power, and acts on behalf of the national interest.[70] To label it “quasi-private” as the primary distinction ignores its overwhelmingly public mission and obscures the true nature of its executive power.
Furthermore, the reliance on a “distinct historical tradition” creates a bespoke exception that lacks a clear, discernible boundary for future application. The Court’s invocation of the “history and tradition of the national bank” notably overlooks the profound constitutional debates that fiercely contested the very establishment of the First and Second Banks of the United States. Prominent figures like Thomas Jefferson and James Madison vehemently argued against their constitutionality, viewing them as exceeding Congress’s enumerated powers.[71] This historical controversy suggests that the “tradition” of a national bank was far from uniformly accepted.
Furthermore, the degree of independence enjoyed by these early national banks, and even the Federal Reserve upon its creation in 1913, was significantly less robust than the autonomy afforded to the modern Fed.[72] The First and Second Banks operated under charters that allowed for considerable political influence, including direct presidential appointment of directors and significant Treasury involvement.[73] Similarly, the Federal Reserve Act of 1913 initially provided for a Federal Reserve Board dominated by Treasury officials and more subject to executive control than its current iteration.[74] Its heightened independence was largely a post-World War II development, achieved through statutory reforms and evolving political norms.[75] To ignore these nuances and invoke a monolithic “history and tradition” for the Fed’s modern independence, while simultaneously dismantling other long-standing administrative arrangements, highlights a selective and potentially outcome-driven historical narrative. This approach provides no guidance on how similar claims of unique historical lineage or “quasi-private” structures might be evaluated for other agencies.[76] It suggests that the exception is less a coherent constitutional principle and more a convenient means of avoiding the immense practical and market disruption that would ensue from dismantling the Fed’s independence. It allows the Court to maintain the theoretical purity of the unitary executive where it wishes to expand presidential power, while simultaneously carving out an economically convenient exception without establishing a consistent, future-proof legal standard.
VI. Conclusion
The Supreme Court’s emergency stay in Trump v. Wilcox dramatically reshapes the power dynamics of the U.S. government. In allowing the President to dismiss independent agency officials like those at the NLRB and MSPB without cause, the 6-3 supermajority has severely weakened the precedent set by Humphrey’s Executor v. United States, a cornerstone of administrative law for nearly a century. This decision, notably made through an expedited “shadow docket” process, raises serious concerns about judicial transparency and impartiality. The majority’s reasoning, centered on the vague concept of “considerable executive power,” lacks clear definition and a consistent analytical framework. This vagueness is starkly contrasted with the Court’s selective justification for preserving the Federal Reserve’s independence, which relies on a contested interpretation of “history and tradition.” Such inconsistencies suggest a judicial philosophy geared more towards expanding presidential control than upholding a coherent legal standard.[77] Ultimately, by allowing the President to disregard duly enacted statutes, the Court itself sanctions a violation of the constitutional command to “take Care that the Laws be faithfully executed,” thereby subverting the will of the people and undermining the very foundation of stable government.
* B.A., Rhodes College, 2022; J.D. Candidate, University of Missouri School of Law, 2026; Associate Editor, Missouri Law Review, 2025–2026. Thank you to Rachel Carlson, Lucas Reed, and Christy Hoffman for their help in the editing process.
[1] Trump v. Wilcox, 145 S. Ct. 1415 (2025).
[2] Mark S. Spring, NLRB Again Without A Quorum, CDF Lab. L. LLP (Mar. 31, 2025), https://www.cdflaborlaw.com/blog/nlrb-again-without-a-quorum.
[3] See William B. Gould IV, Stanford’s William B. Gould IV on the Supreme Court’s Decision in Trump v. Wilcox, Stan. L. Sch.: Legal Aggregate (May 27, 2025), https://law.stanford.edu/2025/05/27/stanfords-william-b-gould-iv-on-the-supreme-courts-decision-in-trump-v-wilcox/.
[4] Wilcox, 145 S. Ct. at 1417 (Kagan, J., dissenting).
[5] See Gould, supra note 3.
[6] Id. (“[T]he Court makes grand conclusions in the absence of genuine judicial process. The result is both improper procedure and an erosion of the people’s will.”).
[7] Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97, 102 (2023).
[8] Wilcox, 145 S.Ct. at 1415.
[9] Matt Bruenig, Read the Trump Email Firing Member Wilcox and GC Abruzzo, NLRB EDGE (Jan. 30, 2025), https://www.nlrbedge.com/p/read-the-trump-email-firing-member; 29 U.S.C. § 153(a) (2024) (grounds for removal for NLRB members) and 5 U.S.C. § 1202(d) (2024) (grounds for removal for MSPB members, which also include inefficiency).
[10] Wilcox, 145 S.Ct. at 1417 (Kagan, J., dissenting).
[11] Wilcox v. Trump, 775 F.Supp.3d 215 (D.D.C. 2025); Harris v. Bessent, 775 F.Supp.3d 164 (D.D.C. 2025).
[12] Wilcox, 145 S.Ct. at 1415; 5 U.S.C. §§ 701–706 (2024).
[13] Wilcox, F.Supp.3d at 240; Harris, F.Supp.3d at 100.
[14] Wilcox, 145 S.Ct. at 1415.
[15] Id.; Wilcox v. Trump, No. 25-5057 (D.C. Cir. filed Mar. 10, 2025); Harris v. Bessent, No. 25-5037 (D.C. Cir. filed Mar. 4, 2025).
[16] Andrea Hsu, Appeals Court Rules Trump Can Fire Board Members of Independent Agencies, NPR (Mar. 28, 2025), https://www.npr.org/2025/03/28/nx-s1-5343963/trump-firings-board-members-appeals-court; Harris v. Bessent, No. 25-5037, 2025 WL 980278 (D.C. Cir. Mar. 28, 2025), vacated on reh’g en banc, No. 25-5037, 2025 WL 1021435 (D.C. Cir. Apr. 7, 2025).
[17] Harris v. Bessent, No. 25-5037, 2025 WL 1021435 (D.C. Cir. Apr. 7, 2025).
[18] Id.
[19] Trump v. Wilcox, 145 S.Ct. 1415 (2025).
[20] Id.
[21] Id.
[22] Id.
[23] U.S. Const. art. II, § 1, cl. 1.
[24] See generally Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019); Nathaniel Wald Donahue, What Does Humphrey’s Executor Mean?, Yale J. Regul.: Notice & Comment (May 10, 2025), https://www.yalejreg.com/nc/what-does-humphreys-executor-mean-by-nathaniel-wald-donahue/.
[25] Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541, 545 (1994).
[26] Id.; U.S. Const. art. II, § 3.
[27] Christopher J. Walker & Aaron Nielson, The Early Years of Congress’s Anti-Removal Power, 63 Am. J. Legal Hist. 219, 220 (2023).
[28] Myers v. United States, 272 U.S. 52, 135 (1926).
[29] Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935).
[30] Id. at 631–32.
[31] See, e.g., Daniel A. Crane, Debunking Humphrey’s Executor, 83 Geo. Wash. L. Rev. 1835, 1836 (2015) (stating Humphrey’s Executor paved the way for the modern administrative state by holding that Congress could constitutionally limit the President’s powers to remove heads of regulatory agencies and “served to legitimize the modern regulatory state and remains one of the iconic judicial pillars of the technocratic, independent administrative system”).
[32] Seila Law LLC v. Consumer Financial Protection Bureau, 519 U.S. 197 (2020).
[33] Id. at 213.
[34] Id. at 215, 218–19.
[35] Id. at 220–22.
[36] Id. at 238–39 (Thomas & Gorsuch, JJ., concurring in part and dissenting in part).
[37] 12 U.S.C. § 242 (2024) (providing for removal “for cause by the President”); 12 U.S.C. § 248 (2024) (enumerating powers of the Federal government); Aditya Bamzai & A.L. Nielson, Article II and the Federal Reserve, 109 Cornell L. Rev. 843, 843 (2024) (“The Federal Reserve is the most powerful central bank on earth and, arguably, the most important independent agency in the United States. A presidential removal power over Federal Reserve officials calls into question the independence of monetary policy.”).
[38] Trump v. Wilcox, 145 S.Ct. 1415, 1415 (2025).
[39] Id. at 1415.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id. at 1416 (Kagan, J., dissenting).
[47] Id. at 1417.
[48] Id. at 1417.
[49] Id. (quoting Humphrey’s, 295 U.S. at 626, 629).
[50] Id. at 1418.
[51] Id.
[52] Id.
[53] Id.
[54] Id. at 1418–19.
[55] Id. at 1419–20.
[56] Id. at 1419.
[57] Id. at 1420.
[58] Id.
[59] Id. at 1421.
[60] Id.
[61] The Court’s grant of an emergency stay in Trump v. Wilcox is reminiscent of its handling of the Texas abortion law (S.B. 8), where a procedural ruling on the shadow docket effectively nullified a constitutional right under Roe v. Wade, and previewed the final overturning of the precedent in Dobbs v. Jackson Women’s Health Organization. Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021) (denying stay and allowing Texas law to take effect). In both cases, the Court used a procedural formality to allow a precedent-violating action to proceed, thereby signaling its eventual willingness to formally abandon the underlying precedent. See Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[62] Wilcox, 145 S.Ct.at 1415.
[63] Id.
[64] A robust debate exists among scholars regarding the strictness of the nondelegation doctrine at the Founding. Some argue for a historically strong nondelegation doctrine, contending that the Founding generation understood Congress as unable to delegate significant policy discretion to the Executive and citing evidence such as Madison’s proposed amendment and the Post-Roads Debate. See, e.g., Ilan Wurman, Nondelegation at the Founding, 130 Yale L .J. 1500, 1504 (2021) (arguing that “the Founding generation firmly believed that Congress could not delegate discretion over ‘important subjects’ to the Executive”). Conversely, other scholars assert that the Founders did not embrace a judicially enforceable nondelegation prohibition as understood today, arguing that early Congresses routinely made broad delegations and that the prohibition was against permanent transfer rather than mere delegation subject to congressional control. Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 281 (2021) (asserting that “there was no discernable, legalized prohibition on delegations of legislative power” at the Founding, provided the exercise remained subject to congressional oversight).
[65] See, e.g., Marc Labonte, Cong. Rsch. Serv., IF10054, Introduction to Financial Services: The Federal Reserve (2025) detailing the Fed’s responsibilities including monetary policy, regulation of banks and financial firms, and participation in intergovernmental fora); Fed. Reserve Bd., Monetary Policy, https://www.federalreserve.gov/monetarypolicy.htm (last visited Aug. 8, 2025) (describing the Fed’s actions to promote maximum employment, stable prices, and moderate long-term interest rates).
[66] Id.
[67] 12 U.S.C. § 242; Wilcox, 145 S. Ct. at 1415 (citing Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 222 n.8 (2020)).
[68] Michael C. Dorf, Towards a Functional Theory of Independent Agencies, Dorf on Law (May 28, 2025), https://www.dorfonlaw.org/2025/05/towards-functional-theory-of.html.
[69] Wilcox, 145 S.Ct. at 1417 (citing Seila, 591 U.S. at 222, n. 8).
[70] See supra note 65.
[71] See Thomas Jefferson, Opinion on the Constitutionality of the Bank (Feb. 15, 1791), in 19 The Papers of Thomas Jefferson 275 (Julian P. Boyd et al. eds., 1974); James Madison, Speech in Congress on the Bank Bill (Feb. 2, 1791), in 13 The Papers of James Madison 372 (Charles F. Hobson & Robert A. Rutland eds., 1981).
[72] See, e.g., Steven Slivinski, The Evolution of Fed Independence, Fed. Res. Bank of Richmond (Fall 2009), https://www.richmondfed.org/-/media/richmondfedorg/publications/research/econ_focus/2009/fall/pdf/federal_reserve.pdf (explaining that “for most of the first four decades of its existence, a lack of independence was characteristic of the Federal Reserve” due to the Secretary of the Treasury and Comptroller of the Currency being ex officio Board members, the Fed’s initial role in financing WWI, and the fact that “monetary policy would basically be dictated by Congress and the White House between 1933 and 1951”).
[73] See Act of Feb. 25, 1791, ch. 10, § 7, 1 Stat. 191, 194 (First Bank); Act of Apr. 10, 1816, ch. 44, § 8, 3 Stat. 266, 270 (Second Bank).
[74] Federal Reserve Act, ch. 6, 38 Stat. 251 (1913).
[75] See Allan H. Meltzer, A History of the Federal Reserve (2003).
[76] Dorf, supra note 68 (“If we had a functional Congress, it might try to rewrite the statutes that insulate other independent agencies so that they too can partake of the Fed’s unique structure. That would render such a structure no longer unique, but surely the key to the exception for the Fed is not the uniqueness of the structure but the characteristics of that structure. Like the Fed, perhaps the National Labor Relations Board (NLRB), Merit Systems Protection Board (MSPB), Federal Trade Commission (FTC), Federal Election Commission (FEC), and every other independent agency under threat from the overruling of Humphrey’s could be re-designed to make them quasi-private as well.”).
[77] See Charlie Savage, Legal Conservatives’ Long Game: Amp Up Presidential Power but Kneecap Federal Agencies, N.Y. Times (July 4, 2024), https://www.nytimes.com/2024/07/04/us/politics/conservative-legal-movement-supreme-court.html.