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).
