The Supreme Court, continuing to broadly expand the constitutional power of President Trump and future Presidents, on Thursday night temporarily upheld unchecked White House authority to fire members of federal government agencies that regulate wide swaths of American life.

The two-page order, approved by a 6-to-3 vote, means that for the first time in 90 years, a President now may remove such an official for any reason or no reason at all, merely as an act of whim or will.  Of greater importance, the order set up the real possibility that, when the Court moves into a new term next fall, it will be in a position to make permanent what has just happened to two federal officials and could happen, potentially, to many others.

Thursday’s action appeared to be almost as significant constitutionally as last summer’s decision by the Court, granting sweeping legal immunity to Trump and other Presidents for misconduct or actual crimes committed while in office.  That decision and the new order represent new advances of the current Court majority’s strong embrace of the “unitary Executive theory” that gives the President supreme power over the entire Executive Branch.

Short of striking down as unconstitutional a major piece of legislation passed by Congress, Thursday’s order is one of the most serious affronts in history to the authority of Congress – here, its creation of government agencies with rules to protect their work from political influence.

Since 1887, Congress has been creating such agencies, and insulating their members from being fired, unless there is an important reason – such as failure to perform their duties – to remove them.  The Supreme Court upheld that approach in a unanimous ruling in 1935, in the case of Humphrey’s Executor v. United States.

That precedent, a sharp rebuke to then-President Franklin Roosevelt, is now in deep peril, as three Justices said in a caustically worded, eight-page dissenting opinion.

Although the Court majority insisted it was not making a final decision on the point, the actual result – for the time being – is that Trump has been allowed to dismiss without justification members of two government boards that seek to protect workplace rights.  Out of a job immediately are a member of the National Labor Relations Board, which oversees employee rights in private industry, and a member of the Merit Systems Protection Board, which does the same for federal government employees.

The order came as an emergency action without the normal full review for major constitutional disputes.  The attempt of those two officers (the NLRB’s Gwynne Wilcox and the MSPB’s Cathy Harris) to regain their posts will now return to lower courts for further review, but the views expressed by the majority of Justices left little doubt about their ultimate fate.

The majority’s explanation was unsigned, but appeared to have the full support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.  Writing for the dissenters was Justice Elena Kagan; she was joined by Justices Ketanji Brown Jackson and Sonia Sotomayor.

Technically, the order was only a temporary one, requested by the Trump Administration, to block lower court decisions that had restored Wilcox and Harris to their positions, temporarily undoing their summary dismissal by Trump.  Thursday’s action will bar the two from their posts pending further review by a federal appeals court and, ultimately, in a new appeal to the Supreme Court for a final decision.

However temporary Thursday’s order was meant to be, one of the reasons the majority cited for its action was its view that the Administration “is likely to show that both the NLRB or MSPB” exercise the kind of government power that makes them subject to a President’s power under the Constitution’s Article II “to remove without cause executive officers who exercise that power on his behalf.”

While that partial quotation was taken from a prior ruling by the Court in 2020 in another official firing case, that authority to “remove without cause” has been checked since 1935 by the Humphrey’s Executor precedent and the Court has not – at least not yet – overruled that decision.

The order said that the Court was not making an ultimate decision about the two firings at issue, saying that the dispute was “better left for resolution after full briefing and argument,” but it went on to say that the government’s functioning would be less impaired if those firings were put into effect now than it would be if the two officers were allowed to continue in their jobs despite the President’s wishes.  Blocking the lower court rulings keeping the two on the job, it added, would avoid repeated firing and reinstatement as the controversy continued through the courts.

The Court, though, went out of its way to signal that it may not ultimately uphold unchecked power in the Presidency to fire the officials who lead one agency: the Federal Reserve Board and its Open Market Committee – the entities that manage the flow of credit and money supply across the entire U.S. economy.

Because President Trump has several times threatened to fire the head of the Federal Reserve for failure to lower borrowing rates to bolster economic growth, threats that have roiled the financial markets, a number of the legal filings sent to the Court in the NLRB-MSPB case have urged the Court to avoid threatening the independence of “the Fed.”  The majority said Thursday that “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.”

Those banks were the precursors of the Fed in managing the nation’s money and credit, including finding ways to pay off the nation’s debts from the Revolutionary War.  Those two “central banks” functioned off and on from 1791 to 1836 as agencies serving to stabilize government finances; they were both deeply controversial in the nation’s early years.

Thursday’s dissenting Justices commented that the majority’s reference to the Fed’s independence “came out of the blue” and was puzzling because that independence “rests on the same constitutional and analytical foundation as that of” the independent agencies like the NLRB and MSPB.

The dissenters added: “If the idea is to reassure the markets, a simpler – and more judicial – approach would have been to deny the President’s application…on the continued authority” of the 1935 precedent in the Humphrey’s Executor case.

Justice Kagan’s opinion left no doubt of the dissenters’ deep discontent with the majority action, saying the Court should have refused to side with the President and instead should have relied “on the will of Congress, this Court’s seminal decision approving independent agencies ‘for-cause’ protection, and the ensuing 90 years of the Nation’s history….Our emergency docket should not be used to overrule or revise existing law.”  Under the 1935 precedent, the dissent added, “this case is easy.”

Because the Court is expected to finish its current term later this month or early in July, there may be nothing further on the firings of the NLRB and MSPB officials except in lower courts, and Trump’s firing of other officers could be affected as those are tested in the meantime in lower courts.