In allowing the president to fire two members of independent federal boards, the Supreme Court’s GOP-appointed majority signaled it intends to hollow out a 90-year-old precedent that protects independent agencies from control by the White House.
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May 29, 2025
Welcome to The Opposition, a weekly premium newsletter focused on the legal battles holding the Trump administration accountable for its anti-democratic executive actions. Upgrade to premium today for $120/year ([link removed] ) and always receive this newsletter in your inbox.
Last week, the Supreme Court brazenly rewarded Trump for breaking the law by firing independent federal board members without cause. The ruling indicates that the justices are set to overturn or weaken a precedent that protected independent agencies from presidential control for almost a century.
While Trump so far has had mixed success before the Supreme Court, he’s getting crushed in the lower courts. In this edition, we take another look at his stunning streak of losses.
As always, thank you so much for reading.
– Jacob Knutson, reporter
Catch up quickly
- A federal judge in D.C. greenlit lawsuits against Elon Musk and the Department of Government Efficiency (DOGE), finding that plaintiffs plausibly argued that Musk’s position violates the Appointments Clause and that Trump’s creation of DOGE was done without statutory or constitutional basis.
- NPR and three public radio stations in Colorado sued Trump over an executive order that attempts to bar the use of congressionally appropriated funds for NPR and PBS, calling the order “textbook retaliation and viewpoint-based discrimination.”
- A Boston-based federal judge lambasted the Trump administration for misrepresenting one of his previous orders and publicly attacking him, falsely, amid a dispute over the administration’s illegal effort to deport undocumented men to South Sudan without first giving them due process.
Independent agencies are on SCOTUS’ chopping block
Screenshot 2025-05-28 at 2.08.29 PM ([link removed] )
In allowing the president to fire two members of independent federal boards last week, the Supreme Court’s GOP-appointed majority signaled it intends to overturn or hollow out a 90-year-old precedent that protects agencies that operate without direct control from the White House.
The court’s 6-3 order upheld Trump’s dismissal of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris as lawsuits challenging their dismissals continue.
Despite acknowledging that the “President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given,” the court alarmingly still let Trump dismiss Wilcox and Harris based on “our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
That dichotomy indicates that the court is on the verge of weakening Humphrey’s Executor v. U.S., which prevents presidents from arbitrarily firing members of multi-member commissions or boards like the NLRB and MSPB.
It also suggests that the court’s sole guiding precedent for presidential removal issues is Seila Law LLC v. Consumer Financial Protection Bureau, a 2020 ruling that allowed the president to remove without cause federal officials who exercise executive power on his behalf.
Notably, the majority didn’t once cite Humphrey’s in its opinion.
The court hasn’t issued a final ruling in Wilcox’s and Harris’ cases, but based on last week’s emergency application order…
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Trump’s stunning streak of losses in lower courts
While Trump has had mixed success before the Supreme Court, he’s getting crushed in the lower courts. His administration has lost a shocking 96% of rulings in federal district courts so far this month, according to a recent analysis by Adam Bonica, a professor of political science at Stanford.
Bonica’s data indicates that judges across the ideological spectrum are ruling against Trump at similar rates. He’s lost in 72% of rulings issued by Republican-appointed judges and 80% of rulings by Democratic-appointed judges.
Trump’s cross-ideological loss rate is likely due to several factors.
A flood of officials have left, or been purged from, the Department of Justice, which has likely added to the workloads for those who remained or new hires. This increases the likelihood of mistakes or poor planning, potentially leading to unconvincing arguments before judges.
Trump’s going after the legal profession itself as well. In arresting judges, attacking the courts, targeting lawyers and legal organizations, Trump set the legal profession as a whole on the defensive. Judges may now be acutely sensitive to challenges to their authority and far less willing to give the government the benefit of the doubt in certain cases.
But most important…
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To do list
- Organizations are holding anti-Trump rallies this Saturday in parts of Arizona, Connecticut, Colorado, New York, Pennsylvania, Ohio, Washington and several other states. Upgrade to premium ([link removed] ) for the full list.
For the full to do list and a deeper analysis of how Trump’s anti-democratic actions are playing out in court, become a member for $10/month or $120/year ([link removed] ) and support our growing newsroom.
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