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- [00:00]
Tommy John Representative
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- [00:31]
Lifelock Representative
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- [01:26]
Michael Popak
We got a startling and breaking news story to start this week. A big loss for the Trump administration. The full panel of the Court of appeals for D.C. has ruled against the Trump administration 7 to 4. The four judges, three of them being Trump appointees. I'll talk about that next. But the seven majority found that both Gwen Wilcox and Kathy Harris need to be immediately reinstated into their positions at one, the National Labor Relations Board, the other at the Merit Protection Service Board because they were unconstitutionally and illegally fired by Donald Trump because he says he claims he was exercising his article to power. But these are bipartisan, congressionally created bodies, National Labor Relations Board and Service Protection Board, to protect workers and federal workers. And he's not allowed to do that under a long line of cases going back 90 years called Humphreys Executor. That case is still good law, is still what the Supreme Court relies on and recently reaffirmed it in 2020 in a case called Celia Law. That's what the majority says. I'm going to break it down for you now about what happens next. Here's how we got here. These came up as individual cases. They were consolidated for appeal. The case of Gwen Wilcox before Amy Berman Jackson, the case of Kathy Harris in front of Raul Contreras. Two judges at the trial court level in D.C. they ruled based on the same case law. It was a very similar order based on this law I just told you about, Humphrey's executor, which says that if Congress creates a body and it doesn't exert too much executive power and has independent functionality and they've created in a bipartisan way for a purpose, that the executive branch cannot fire any of the people on there unless it's for cause, unless it's for malfeasance or neglect or wrongful conduct. And Donald Trump doesn't argue in any of his papers that any of these people did anything wrong. He just doesn't like the color of their party, doesn't like their gender, doesn't want them there any longer. But that's not what the statute says in creating those two bodies. And if it's that kind of body, Humphrey's executor, that case law I'm telling you about, says you can't just fire them without cause. He's saying I can fire them because that law that's been on the book since the 1930s is unconstitutional because I have the power, the ultimate power over the executive branch. Okay? That's not what the case law says. And so we have a constitutional crisis that's going to get resolved one way or the other by the United States Supreme Court. But for now, this is what let me read to you from the order. The judges that joined in the order are Judge Srinivasan, who's the chief judge, Judge Mallet, Judge Pollard, Judge Wilkins, Judge Childs, Judge Pan, and Judge Garcia. The ones in dissent are Henderson, Walker and Rao and Katz. Three or four of them are Trump appointees. Two of them were on the original panel that voted 2 to 1 to not reinstall them, not issue the stay, not, you know, they were in favor of blocking the injunction from the trial court level that would have required these two people to go back to work. They, well, no, we don't want to disrupt the status quo. It's extraordinary. We, you know, the executive branch fired them. We shouldn't be rehiring them, you know, like that. Here's what the majority decision has said that is now going up to the Supreme Court ordered that the motions for en banc consideration, reconsideration, that's the entirety of the group I just told you about and vacateur, be granted. That means vacating and the government's motions for a stay pending appeal are denied. In other words, we're not going to stay our order. Get back to work, Ms. Harris and Ms. Wilcox and they can litigate in the meantime. Which means the Trump administration is going to have to run now to the Supreme Court to try to get an emergency stay in Humphrey's Executor, which is from 1935, and another case called Weiner from 1958. This is from the decision on page two. The Supreme Court unanimously upheld removal restrictions for government officials on multi member adjudicatory boards, while two laws governing removal restrictions for single heads of agencies exercising executive policymaking and enforcing enforcement powers have been held unconstitutional. Cilia law case from 2020 the Supreme Court has repeatedly stated that it was not overturning the precedent established in Humphrey's executor for multi member adjudicatory bodies. That's what we have here, multi member adjudicatory bodies. Instead, the Supreme Court has, in its own words, left that precedent in place. Cite quoting from the Celia case Celia law case from 2020, recognizing that Celia Law did not revisit prior decisions Are.
- [06:41]
Manokura Representative
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- [06:46]
Michael Popak
Look, I'm a honey guy instead of.
- [06:47]
Manokura Representative
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- [08:01]
Michael Popak
To get the most out of the.
- [08:02]
Manokura Representative
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- [08:24]
Michael Popak
Off the starter kit, which comes with.
- [08:25]
Manokura Representative
An MGO 850 Manuka Honey Jar 5. Five honey travel sticks, a wooden spoon and a guidebook. That's monacora.com legalaf for $25 off your.
- [08:38]
Michael Popak
Starter kit the Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent on the books unless and until the court itself changes it or overturns it. If a precedent of the Supreme Court has direct application in the case, lower courts should follow the case which directly controls leaving to the Supreme Court the prerogative of overruling its own decisions. That's from a Supreme Court Mallory vs. Norfolk 600 U.S. 122, 2023. The rule governs even if the lower court thinks the precedent is intention with some other line of decisions. In other words, we don't have a choice. Supreme Court has directed courts of appeal to apply the precedent and let the Supreme Court fix it if there's a problem. And that's exactly what they did, the Supreme Court, they then go through the orders. They then go through the standards for blocking the order, which they're not going to do, and the request for the stay being denied. Judge Henderson in a one paragraph dissent because she had ruled this is her ruling is what's being overturned here. She said. We do the parties, especially a functioning executive branch, no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article 2 authority. Only the Supreme Court can decide the dispute and in my opinion, the sooner the better. She thinks she was right. In other words, with her two to one decision. She thinks the decision, the appeal should have been taken directly to the United States Department, the Supreme Court and skip the en banc part. But look, it's a stronger case now on appeal with seven judges. If you add in Judge Millette from the lower court. Eight different judges have looked at this and have said Humphrey's executor controls. You can't fire these people without cause. You don't have cause. Get back to work. I think it's a stronger case and that's why they did it, not to delay getting to the Supreme Court. Now the road divides here. Technically, procedurally it goes back to a three judge panel. I think it may be the existing three judge panel of Walker, Henderson and Millette and Obama, Bush and Trump appointee. And they have to make a decision about the legality of what happened, given the new precedent that's been, or the extension of the precedent that's been set here. We know what they're going to do. It's going to be another 2 to 1 against Wilcox and, and, and Harris then. But right now, without waiting for that procedure to happen, the Trump administration on the losing end of this, can take an emergency appeal. First stop, Chief Justice Roberts to decide whether the stay is going to be given. We just saw recently there's a series of things sitting with the Trump administrator with the Supreme Court about stays. Sometimes the Supreme Court moves fast and issues stays or doesn't issue stays. Like they just issued a stay to effectively approve Trump cutting off $60 million worth of teacher funding through teacher grants unilaterally. They just did that a couple of days ago with Amy Coney Barrett joining the majority. But there's other things they're sitting on, like birthright citizenship being denied by executive order. They haven't ruled on that. We're still waiting around for whether Judge Boasberg on the Alien Enemies act case, if, whether he's right or wrong to find that that Trump did not properly exercise his powers under the war powers to deport people without due process to El Salvador, still sitting with the United States Supreme Court. I mean, look, I could come back here in a few minutes and tell you they finally ruled, but these things sort of pile up at the Supreme Court usually because they either can't get their votes together or they really are not that interested in moving quickly on something. They'll just let it go through full appeal here. There's going to be this application. We'll follow it. If I was making a prediction, it's hard to predict with the Supreme Court lately. They're so tied up in knots with each other and themselves. We're going to find out what their view is on this Humphreys executor law and whether they think the firing can happen. I think the four votes on the Supreme Court that will find that Trump can use his Article 2 powers to fire whoever he wants in the executive branch, regardless of how it was created, I think exists. It's Alito, Thomas, Kavanaugh and Gorsuch. The question is going to be, again, Amy Coney Barrett, who. And this is, this is Amy Coney Barrett's court. We're just living in it. Or John Roberts. You know, if they side with the other three, it's going to be five to four to affirm this decision and to put Wilcox and Harris back in their job. If they slide over, if one of the two slide over to the other side, they're going to, they're going to block this again. And Wilcox and Harris can unpack their boxes again because they're not going to work. And I'll continue to follow it right here on the Midas Touch Network and Legal af. So until my next reporting, this is Michael Popak.
- [13:54]
Manokura Representative
In collaboration with the Midas Touch Network.
- [13:56]
Michael Popak
We just launched the Legal AF YouTube channel. Help us build this pro democracy channel where I'll be curating the top stories, the intersection of law and politics. Go to YouTube now and free subscribe @legalafmtn. That's eagleafmtn.