<img src="https://api.follow.it/track-rss-story-loaded/v1/GFPR16m5fB-3y8PEYgNerHn9ye8UNv30" border=0 width="1" height="1" alt="The morning read for Friday, April 11" title="The morning read for Friday, April 11"> <img width="150" height="150" src="https://www.scotusblog.com/wp-content/uploads/2024/10/Banner200115r-1-150x150.jpg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="The morning read for Friday, April 11" title="The morning read for Friday, April 11" style="float:right;" decoding="async" /><p><a class="a2a_button_facebook" href="https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&linkname=The%20morning%20read%20for%20Friday%2C%20April%2011" title="Facebook" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_linkedin" href="https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&linkname=The%20morning%20read%20for%20Friday%2C%20April%2011" title="LinkedIn" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_twitter" href="https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&linkname=The%20morning%20read%20for%20Friday%2C%20April%2011" title="Twitter" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_email" href="https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&linkname=The%20morning%20read%20for%20Friday%2C%20April%2011" title="Email" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_printfriendly" href="https://www.addtoany.com/add_to/printfriendly?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&linkname=The%20morning%20read%20for%20Friday%2C%20April%2011" title="PrintFriendly" rel="nofollow noopener" target="_blank"></a><a class="a2a_dd addtoany_no_icon addtoany_share_save addtoany_share" href="https://www.addtoany.com/share#url=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-friday-april-11%2F&title=The%20morning%20read%20for%20Friday%2C%20April%2011" data-a2a-url="https://www.scotusblog.com/2025/04/the-morning-read-for-friday-april-11/" data-a2a-title="The morning read for Friday, April 11">Share</a></p><p>Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Friday morning read:</p>
<ul>
<li><a href="https://www.reuters.com/legal/us-supreme-court-upholds-order-facilitate-return-deportee-sent-el-salvador-error-2025-04-10/">US Supreme Court tells Trump administration to facilitate return of Salvadoran man deported in error</a> (John Kruzel & Andrew Chung, Reuters)</li>
<li><a href="https://www.washingtonpost.com/politics/2025/04/10/supreme-court-kilmar-abrego-garcia-deportation-el-salvador/">Supreme Court says Trump officials must ‘facilitate’ return of wrongly deported man</a> (Justin Jouvenal & Ann E. Marimow, The Washington Post)</li>
<li><a href="https://www.theatlantic.com/politics/archive/2025/04/supreme-court-confronts-donald-trump/682402/">The Confrontation Between Trump and the Supreme Court Has Arrived</a> (Adam Serwer, The Atlantic)</li>
<li><a href="https://www.politico.com/news/magazine/2025/04/09/supreme-court-public-schools-00272918">The Biggest Threat to Public Education Is Coming From an Unexpected Place</a> (Aaron Tang, Politico) </li>
<li><a href="https://www.nybooks.com/online/2025/04/09/the-apathetic-court/">The Apathetic Court</a> (Duncan Hosie, The New York Review of Books) </li>
</ul>
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<p>The post <a href="https://www.scotusblog.com/2025/04/the-morning-read-for-friday-april-11/">The morning read for Friday, April 11</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>
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<img src="https://api.follow.it/track-rss-story-loaded/v1/Hl5eeY-DKAXyD1RXHZ9zBHn9ye8UNv30" border=0 width="1" height="1" alt="Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador" title="Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador"> <img width="150" height="150" src="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt7-scaled-1-150x150.jpeg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador" title="Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador" style="float:right;" decoding="async" srcset="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt7-scaled-1-150x150.jpeg 150w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt7-scaled-1-570x570.jpeg 570w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt7-scaled-1-500x500.jpeg 500w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt7-scaled-1-1000x1000.jpeg 1000w" sizes="(max-width: 150px) 100vw, 150px" /><p><a class="a2a_button_facebook" href="https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&linkname=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" title="Facebook" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_linkedin" href="https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&linkname=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" title="LinkedIn" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_twitter" href="https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&linkname=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" title="Twitter" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_email" href="https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&linkname=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" title="Email" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_printfriendly" href="https://www.addtoany.com/add_to/printfriendly?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&linkname=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" title="PrintFriendly" rel="nofollow noopener" target="_blank"></a><a class="a2a_dd addtoany_no_icon addtoany_share_save addtoany_share" href="https://www.addtoany.com/share#url=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fjustices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador%2F&title=Justices%20direct%20government%20to%20facilitate%20return%20of%20Maryland%20man%20mistakenly%20deported%20to%20El%20Salvador" data-a2a-url="https://www.scotusblog.com/2025/04/justices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador/" data-a2a-title="Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador">Share</a></p><p>The Supreme Court on Thursday evening largely left in place an order by a federal judge in Maryland directing the government to return to the United States a Maryland man who is currently being held in a maximum-security prison in El Salvador as a result of what the Trump administration concedes was an “administrative error.” In <a href="https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf">an unsigned opinion</a> without any recorded dissents, the court turned down the Trump administration’s request to block the ruling by U.S. District Judge Paula Xinis, which Chief Judge John Roberts had temporarily paused on Monday afternoon to give the justices time to consider the government’s request.</p>
<p>The justices agreed that Xinis could require the Trump administration to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to” that country. But the justices sent the case back to the lower court for Xinis to “clarify” her additional instruction that the Trump administration “effectuate” his return.</p>
<p>In making that clarification, the justices wrote, Xinis should take note of the “deference owed to the Executive Branch in the conduct of foreign affairs.” On the other hand, they added, the Trump administration “should be prepared to share what it can concerning the steps it has taken” to secure Abrego Garcia’s return “and the prospect of further steps.”<span id="more-319741"></span></p>
<p>The man at the center of the case is 29-year-old Kilmar Armando Abrego Garcia, who was born in El Salvador and came to the United States as an undocumented immigrant as a teenager to escape gang violence in his home country. Since 2019, he has lived outside Washington, D.C., with his wife – a U.S. citizen – and their three children, all of whom are also U.S. citizens.</p>
<p>In 2019, immigration officials began efforts to deport Abrego Garcia. When he sought to be released from immigration custody with a bond, the government contended that he was a member of MS-13, an international criminal gang.</p>
<p>An immigration judge denied Abrego Garcia’s request for release, finding that “the evidence shows he is a verified member of MS-13.” Although the judge acknowledged that she was “reluctant to give evidentiary weight” to Abrego Garcia’s “clothing as an indication of gang affiliation,” she concluded that it was enough that a “past, proven, and reliable source of information” had verified Abrego Garcia’s “gang membership, gang rank, and gang name.” The Board of Immigration Appeals affirmed that ruling.</p>
<p>Several months later, Abrego Garcia was eventually granted withholding of removal – a form of immigration relief that protects him from being deported to El Salvador. In particular, an immigration judge concluded, Abrego Garcia had shown that gang members in El Salvador continue “to threaten and harass” his family, and authorities in that country “were and would be unable or unwilling to protect him from past or feared future persecution.”</p>
<p>On March 12, 2025, ICE officers took Abrego Garcia into custody. He was sent to Texas and then, on March 24, to El Salvador’s notorious Terrorism Confinement Center. Detainees who arrive there from the United States are stripped, shackled, and have their heads shaved. Neither Abrego Garcia’s wife nor his lawyers have spoken with him since then.</p>
<p>Abrego Garcia’s lawyers filed a lawsuit in federal court in Maryland, asking Xinis to instruct Trump administration officials to “take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return Plaintiff Abrego Garcia to the United States.”<br />
Xinis ordered the federal government to return Abrego Garcia by 11:59 p.m. on Monday, April 7. The government, she emphasized, “had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador—let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.”</p>
<p>Both Xinis and the U.S. Court of Appeals for the 4th Circuit declined to pause the return order while the government appealed. In a concurring opinion joined by Judge Robert King, Judge Stephanie Thacker wrote that the federal government “has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process. The Government’s contention otherwise, and its argument that the federal courts are powerless to intervene,” she concluded, “are unconscionable.”</p>
<p>President Donald Trump’s new solicitor general, D. John Sauer, came to the Supreme Court on Monday morning, without even waiting for the 4th Circuit to act on his request to pause the return order. He contended that Xinis had “ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m.” that night.</p>
<p>Sauer reiterated the Trump administration’s complaints about what he characterized as “a deluge of unlawful injunctions” by federal judges around the country. But even compared to those orders, he argued, Xinis’s order “is remarkable.” And he asked the justices to impose an administrative stay – that is, a temporary freeze on Xinis’s order to give the court time to consider the Trump administration’s request.</p>
<p>Shortly before 4 p.m. on Monday, Chief Justice John Roberts granted the administrative stay, and he directed Abrego Garcia’s lawyers to file their response by 5 p.m. on Tuesday.</p>
<p>Just a few minutes later, however, Abrego Garcia’s lawyers submitted their response. They urged the justices to deny the Trump administration’s request and order the government to “facilitate Abrego Garcia’s immediate return to halt the ongoing irreparable harm he suffers and advance the public interest in the proper administration of justice.”</p>
<p>Abrego Garcia’s lawyers stressed that their client “has never been charged with a crime, in any country. He is not wanted by the Government of El Salvador. He sits in a foreign prison solely at the best of the United States, as the product of a Kafka-esque mistake.” Moreover, they added, there is nothing “novel” about requiring the federal government to facilitate his return.</p>
<p>Xinis downplayed the government’s contention that Abrego Garcia is a member of MS-13. She emphasized that the “‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”</p>
<p>In a two-page opinion released shortly after 6:30 p.m. on Thursday night, the court noted that, as a result of the administrative stay granted by Roberts on Monday, the Monday deadline for Abrego Garcia’s return “has now passed,” so that a portion of the government’s application “is effectively granted.” But, the court explained, the remainder of Xinis’s order “remains in effect but requires clarification on remand.” Specifically, the court continued, it is not clear what it means for the government to “effectuate” Abrego Garcia’s return, and Xinis may not have the power to order the government to do so.</p>
<p>Justice Sonia Sotomayor wrote an opinion regarding the Supreme Court’s ruling on Thursday, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. She indicated that she would have turned down the government’s request “in full.” But she nonetheless agreed with her colleagues that “the proper remedy is to provide Abrego Garcia with all the process to which he would have been entitled had he now been unlawfully removed to El Salvador.” This includes, she stressed, “notice and an opportunity to be heard” in future proceedings, international conventions prohibiting torture, and federal laws governing the detention and removal of noncitizens. Moreover, she added, in other kinds of immigration proceedings, the federal government has a “well-established policy” of facilitating a noncitizen’s return to the United States.</p>
<p>“In the proceedings on remand,” she concluded, Xinis “should continue to ensure that the Government lives up to its obligations to follow the law.”</p>
<p> </p>
<p>The post <a href="https://www.scotusblog.com/2025/04/justices-direct-government-to-facilitate-return-of-maryland-man-mistakenly-deported-to-el-salvador/">Justices direct government to facilitate return of Maryland man mistakenly deported to El Salvador</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>
BERLIN — Les menaces de droits de douane, mises à exécution ou suspendues, du président américain Donald Trump — qui pénaliseraient les 161 milliards d’euros…
<img src="https://api.follow.it/track-rss-story-loaded/v1/kbEjo5yzJgq1y8Qa6zPkc3n9ye8UNv30" border=0 width="1" height="1" alt="The morning read for Thursday, April 10" title="The morning read for Thursday, April 10"> <img width="150" height="150" src="https://www.scotusblog.com/wp-content/uploads/2024/10/Banner200115r-1-150x150.jpg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="The morning read for Thursday, April 10" title="The morning read for Thursday, April 10" style="float:right;" decoding="async" /><p><a class="a2a_button_facebook" href="https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&linkname=The%20morning%20read%20for%20Thursday%2C%20April%2010" title="Facebook" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_linkedin" href="https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&linkname=The%20morning%20read%20for%20Thursday%2C%20April%2010" title="LinkedIn" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_twitter" href="https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&linkname=The%20morning%20read%20for%20Thursday%2C%20April%2010" title="Twitter" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_email" href="https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&linkname=The%20morning%20read%20for%20Thursday%2C%20April%2010" title="Email" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_printfriendly" href="https://www.addtoany.com/add_to/printfriendly?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&linkname=The%20morning%20read%20for%20Thursday%2C%20April%2010" title="PrintFriendly" rel="nofollow noopener" target="_blank"></a><a class="a2a_dd addtoany_no_icon addtoany_share_save addtoany_share" href="https://www.addtoany.com/share#url=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fthe-morning-read-for-thursday-april-10%2F&title=The%20morning%20read%20for%20Thursday%2C%20April%2010" data-a2a-url="https://www.scotusblog.com/2025/04/the-morning-read-for-thursday-april-10/" data-a2a-title="The morning read for Thursday, April 10">Share</a></p><p>Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Thursday morning read:</p>
<ul>
<li><a href="https://www.washingtonpost.com/politics/2025/04/09/trump-supreme-court-fire-independent-regulators/">Supreme Court lets Trump remove independent regulators, for now</a> (Ann E. Marimow, The Washington Post)</li>
<li><a href="https://www.nytimes.com/2025/04/09/us/politics/trump-deportations-venezuela-el-salvador.html">Rulings in New York and Texas Curb Deportations of Venezuelans to El Salvador</a> (Alan Feuer & Jonah E. Bromwich, The New York Times)</li>
<li><a href="https://abcnews.go.com/Politics/supreme-court-tepid-trump-defending-power-check-president/story?id=120653002">Supreme Court tepid on Trump while defending power to check president</a> (Devin Dwyer, ABC News)</li>
<li><a href="https://www.usatoday.com/story/news/nation/2025/04/10/supreme-court-pause-karen-read-murder-trial/83023300007/">Supreme Court denies request to halt Karen Read murder retrial as jury selection nears end</a> (N’dea Yancey-Bragg, Christopher Cann, & Jessica Trufant, USA Today)</li>
<li><a href="https://www.theatlantic.com/ideas/archive/2025/04/trump-deportations-scotus-ruling/682377/">The Supreme Court Doesn’t Need Facts</a> (Quinta Jurecic, The Atlantic)</li>
</ul>
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<p>The post <a href="https://www.scotusblog.com/2025/04/the-morning-read-for-thursday-april-10/">The morning read for Thursday, April 10</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>
<img src="https://api.follow.it/track-rss-story-loaded/v1/-Bnf1EuwFsW8GwYz9Llg6Hn9ye8UNv30" border=0 width="1" height="1" alt="Will the court overturn a 1930s precedent to expand presidential power, again?" title="Will the court overturn a 1930s precedent to expand presidential power, again?"> <img width="150" height="150" src="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-150x150.jpg" class="attachment-thumbnail size-thumbnail wp-post-image" alt="Will the court overturn a 1930s precedent to expand presidential power, again?" title="Will the court overturn a 1930s precedent to expand presidential power, again?" style="float:right;" decoding="async" srcset="https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-150x150.jpg 150w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-570x570.jpg 570w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-500x500.jpg 500w, https://www.scotusblog.com/wp-content/uploads/2025/04/supremecourt-10-1000x1000.jpg 1000w" sizes="(max-width: 150px) 100vw, 150px" /><p><a class="a2a_button_facebook" href="https://www.addtoany.com/add_to/facebook?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Facebook" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_linkedin" href="https://www.addtoany.com/add_to/linkedin?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="LinkedIn" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_twitter" href="https://www.addtoany.com/add_to/twitter?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Twitter" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_email" href="https://www.addtoany.com/add_to/email?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="Email" rel="nofollow noopener" target="_blank"></a><a class="a2a_button_printfriendly" href="https://www.addtoany.com/add_to/printfriendly?linkurl=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&linkname=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" title="PrintFriendly" rel="nofollow noopener" target="_blank"></a><a class="a2a_dd addtoany_no_icon addtoany_share_save addtoany_share" href="https://www.addtoany.com/share#url=https%3A%2F%2Fwww.scotusblog.com%2F2025%2F04%2Fwill-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again%2F&title=Will%20the%20court%20overturn%20a%201930s%20precedent%20to%20expand%20presidential%20power%2C%20again%3F" data-a2a-url="https://www.scotusblog.com/2025/04/will-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again/" data-a2a-title="Will the court overturn a 1930s precedent to expand presidential power, again?">Share</a></p><p>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.</p>
<p>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, <a href="https://supreme.justia.com/cases/federal/us/295/602/"><em>Humphrey’s Executor v. United States</em></a><em>, </em>which would allow the president to do just that<em>. </em>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.<span id="more-319731"></span></p>
<p>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.</p>
<p>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 <em>The Shadow Docket.</em> We discussed how likely the current court is to overrule <em>Humphrey’s Executor</em> and what might stand in its way, even as the majority has embraced an expansive view of executive power.<em> </em></p>
<p><em>Our conversation was conducted by phone and email and has been edited for clarity. </em></p>
<p><strong>Back in February, then-Acting Solicitor General Sarah Harris wrote in a letter to Congress that the Trump administration planned to challenge <em>Humphrey’s Executor</em>, is there a history of presidents ignoring or pushing that precedent since the 1930s?</strong><strong> </strong></p>
<p>The short answer is no. Obviously opposition to <em>Humphrey’s Executor</em> 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.</p>
<p><strong>What about FDR, where does the case come out of? </strong></p>
<p>FDR took the position that, under the Supreme Court’s <a href="https://supreme.justia.com/cases/federal/us/272/52/">1926 ruling in <em>Myers</em></a>, 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 <em>Humphrey’s Executor </em>unanimously upheld the for-cause removal limitations that Congress had written into the FTC act.</p>
<p>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.</p>
<p><strong>Was there any analogous protection for that relationship between Congress and the executive before the New Deal era</strong><strong> </strong></p>
<p>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 <em>Myers.</em> Because there’s language in Chief Justice Taft’s majority opinion in <em>Myers</em> 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 <em>Myers</em> comes along and suggests, perhaps inartfully, that all of them might be unconstitutional. And then <em>Humphrey’s Executor</em> was basically the test case for that proposition.</p>
<p><strong>Interesting that Taft was the one that comes under.</strong></p>
<p>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 <em>Myers</em> to endorse a very very broad and indefeasible presidential removal power.</p>
<p><strong>So back to where <em>Humphrey’s Executor</em> sits today, how narrow are those protections?</strong></p>
<p>One of the tricky things about <em>Humphrey’s Executor</em> is that, even though the Supreme Court hasn’t overruled it, it has to at least some degree reconceptualized it. <em>Humphrey’s Executor</em> 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.</p>
<p>Even though the modern court has not overruled <em>Humphrey’s</em> <em>Executor,</em> it has really, I think, heavily watered down that understanding. Indeed, it has increasingly come to treat <em>Humphrey’s Executor</em> 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, <em><a href="https://supreme.justia.com/cases/federal/us/487/654/">Morrison v. Olson</a> </em>being the other.</p>
<p>So the Supreme Court today basically takes the view that there’s <em>Morrison, </em>there’s <em>Humphrey’s Executor</em> and there’s nothing else. And that was the basis for the court’s <a href="https://www.scotusblog.com/case-files/cases/seila-law-llc-v-consumer-financial-protection-bureau/">2020 ruling in <em>Seila Law</em></a> 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.</p>
<p>In a world in which we were being faithful to the analysis of <em>Humphrey’s Executor</em> 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 <em>Humphrey’s Executor </em>and<em> Morrison </em>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.</p>
<p><strong>You mentioned the Fed before, where does the Fed stand?</strong></p>
<p>Part of why I believe that even this court has been reluctant to overrule <em>Humphrey’s Executor,</em> 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 <em>Humphrey’s Executor</em> without also undermining the independence of the Fed, and thereby risking yet further harm to the stability of our economic system.</p>
<p>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 <em>Humphrey’s Executor</em>. 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.</p>
<p><strong>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 <em>Humphrey’s</em> <em>Executor</em>? </strong></p>
<p>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.</p>
<p><strong>Do you have a sense of where the justices stand individually on this?</strong></p>
<p>I don’t doubt that there are more than two votes to overrule <em>Humphrey’s Executor. </em>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 <em>Humphrey’s Executor</em>, I think it would have already.<em> </em></p>
<p>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.</p>
<p><strong>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?</strong></p>
<p>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 <em>is</em> going to use these cases to resolve the <em>Humphrey’s Executor</em> 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 <em>Humphrey’s Executor </em>will be resolved before the justices rise for their summer recess.</p>
<p>The post <a href="https://www.scotusblog.com/2025/04/will-the-court-overturn-a-1930s-precedent-to-expand-presidential-power-again/">Will the court overturn a 1930s precedent to expand presidential power, again?</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>