Scholar proposes several judicial remedies for improper presidential removal of agency heads.
Over the past year, President Donald J. Trump has dismissed numerous agency heads, including members of the U.S. Consumer Product Safety Commission, the U.S. Merit Systems Protection Board, and the National Labor Relations Board. He has even attempted to remove a governor of the Federal Reserve Board.
In these cases, if courts conclude that the President improperly removed an agency head, what remedies should the court provide? In a recent article, Samuel L. Bray argues that interim—or temporary—relief should minimize changes in agency leadership, while final relief should typically take the form of a declaratory—or binding—judgment by the court.
When agency heads challenge their removal, and after the court concludes that removal was improper, courts must first decide what type of interim relief to grant. Bray, a professor at the University of Chicago Law School, argues that this interim relief should typically take the form of a temporary restraining order or a preliminary injunction—orders that prevent certain actions until a final order is issued. This approach, he explains, prevents “flips,” or repeated changes in who controls an agency.
This “anti-flipping principle,” Bray notes, prevents harm during litigation by avoiding the hardships caused by frequent changes in authority, discourages opportunistic behavior by the executive and removed agency head, and minimizes legal confusion within agencies and among regulated entities. As Bray writes, excessive flipping is “like acid for legal certainty; it is inimical to the rule of law.”
If a removed agency head who has been improperly removed promptly sues to remain in office, Bray suggests that courts should issue a preliminary injunction allowing them to remain in office. But if the agency head does not immediately sue, he suggests a court should not grant a preliminary injunction. This approach, he contends, best minimizes the number of changes in authority.
Bray cautions that when courts focus on the facts and legal arguments of a case—or the “merits” of the case—rather than on minimizing the number of flips, problems arise due to confusion within judicial precedent. These problems stem, he explains, from the unresolved status of the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, where the Court upheld the constitutionality of a federal law that prohibited Congress from removing members of the U.S. Federal Trade Commission without cause.
Although the Supreme Court will decide whether to overrule Humphrey’s Executor this year, the Court has suggested that certain federal officials—such as governors on the Federal Reserve Board—might be exempted from the usual presidential removal power. On the other hand, the Court has instructed lower courts not to treat decisions as overruled until they “actually are.” Bray states that this uncertainty among federal judges has created confusion.
Amid such confusion in the federal courts, Bray provides a hypothetical to illustrate why focusing on the “merits” of a removal case can be problematic: The President removes an officer who vacates a position, causing a flip of authority. A district court then issues a preliminary injunction reinstating the officer, causing another flip. An appeals court then stays that preliminary injunction, causing yet another flip.
Additional rulings focused on the “merits” by lower courts or an interim Supreme Court decision could each generate further flips. By contrast, an “anti-flipping” approach would minimize the harm and confusion caused by repeated flips of authority.
Ultimately, courts must determine what form the final remedy will take. Bray identifies three possible remedies: a declaratory remedy recognizing the officer as the rightful officeholder, an injunction ordering reinstatement of the removed officer, or monetary damages restoring the officer’s lost pay or benefits.
Bray argues that monetary damages are usually insufficient because neither the President nor the removed officer is “really in it for the money.” Instead, a declaratory remedy would typically be the most appropriate because it would restore the proper officeholder without directly commanding the executive branch, preventing additional conflict. He notes, however, that if the executive branch were to ignore a declaratory remedy, an injunction might be appropriate.
Bray concludes that his method—using “anti-flipping” principles when deciding interim relief and favoring declaratory judgments when awarding final remedies—is a solution for the federal courts in an age of political polarization.
