Judicial departmentalism and the Shadow Docket

A judicial-departmentalist take on Trump v. Wilcox and the Court allowing Trump to fire members of the NLRB and MSPB pending resolution of the litigation. The majority hints that resolution will be in favor of Trump's power to fire any federal official (except perhaps the Fed Chair, for no good reason).

Kagan's dissent includes the following: "The current President believes that Humphrey’s should be either overruled or confined. . . . And he has chosen to act on that belief—really, to take the law into his own hands."

That last piece misses the import of some departmentalism. If a President who believes a precedent should be overruled or confined cannot act on that belief , how else can he present his argument that the Court should overrule or confine that precedent? The Court can only reconsider precedent in the course of resolving a new concrete case-or-controversy between the President and some adverse party. The President creates that case-or-controversy only by acting on his belief--in this case by firing Wilcox (NLRB) and Harris (MSPB); those officials pursue litigation to challenge their firings, allowing (eventually) SCOTUS to decide the continued vitality of Humphrey's in the course of resolving that dispute. If Trump never fires Wilcox or Harris, they never sue and SCOTUS never gets the opportunity to decide. Derogating these necessary steps as lawlessness--"taking the law into his own hands"--is unfair; it ignores the absence of any alternative mechanism for the executive (even one committed to following SCOTUS precedent) to change or create new judicial precedent. And this is without pushing the strongest form of judicial departmentalism, under which the executive may act on his independent constitutional judgment, regardless of its consistency with SCOTUS precedent.

The problem here is not Trump but the majority's behavior in resolving emergency issues on the shadow docket.

As I described judicial departmentalism, this case should proceed as follows--1) President fires the officers; 2) officers sue; 3) officers win in the trial court, which enjoins the firings under Humphrey's and allows officers to retain their jobs; 4) officers win in the court of appeals under Humphrey's allowing officers to retain their jobs; 5) case reaches SCOTUS, which either 6) affirms Humphrey's and allows officers to keep their jobs or 7) overrules Humphrey's and declares the firings proper, after which the officers lose their jobs. That is, Trump can act as he wishes in the real world; the courts stop those actions unless and until SCOTUS overrules the controlling precedent at the final step.

The majority instead has given Trump his victory at around step 3.5, by hinting at (and thus effectively producing) Humphrey's demise, without the full scope of litigation or briefing. Nevertheless, the problem is not what Trump did in firing these officers; that remains the necessary predicate for any request for SCOTUS to change precedent. The problem is the majority doing so too soon and outside of the ordinary three-tier litigation process.