U.S. Supreme Court courtroom. Credit: Carol M. Highsmith/Library of Congress
The U.S. Supreme Court is expected to decide whether to hear arguments over President Donald Trump's removal of Todd Harper and Tanya Otsuka from the NCUA Board.
According to the High Court’s docket, the Harper and Otsuka case materials have been circulated to the Justices who will meet during their private conference on Nov. 21 to decide which cases will be heard before them.
On Sept. 25, attorneys for Harper and Otsuka filed a petition for certiorari before judgment, asking the justices to take up their case immediately rather than wait for a ruling from the U.S. Court of Appeals for the D.C. Circuit. The petition was placed on the Supreme Court’s docket Sept. 29., putting the appeals court case on hold pending the High Court’s decision.
Harper and Otsuka argued that their removals violated statutory protections and the constitutional separation of powers. Their case is now one of two pending before the Supreme Court involving the scope of presidential authority to remove leaders of independent agencies. The other, Trump v. Slaughter, challenges removal protections for Federal Trade Commission commissioners.
The Supreme Court will hear arguments in the Trump v. Slaughter case on Dec. 8, according to SCOTUS blog, an independent website that reports on the High Court. FTC Commissioner Rebecca Slaughter was fired by Trump reportedly without cause, which is contrary to federal law.
Attorneys for Harper and Otsuka requested expedited consideration so that the Justices could address their case alongside the Slaughter case.
“This (Harper and Otsuka) petition presents parallel questions to those in Slaughter, but it also implicates the constitutionality of removal restrictions for agencies that, unlike the FTC, follow in a 'distinct historical tradition’ of independence from the Executive dating back to before the Founding — the same historical tradition that differentiates the Federal Reserve Board from agencies such as the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB),” attorneys for Harper and Otsuka wrote in their Supreme Court’s petition. “This case thus presents an opportunity for the Court to evaluate the role of history and tradition when it comes to the validity of removal protections, along with considering the continuing validity of Humphrey’s Executor v. United States, 295 U.S. 602 (1935), as it has chosen to do in Slaughter.”
Humphrey’s Executor, a 1935 landmark case, held that Congress can give certain federal agencies independence from the president and that their leaders can be fired only “for cause,” such as neglect of duty.
If the Supreme Court narrows or overrules the Humphrey Executor in the Slaughter case, it could allow the president to dismiss leaders of independent federal agencies at will.
Attorneys for Harper and Otsuka also argued that immediate action by the Supreme Court is necessary to restore the functions of the NCUA Board and public confidence in the credit union system.
“So long as (Harper-Otsuka) claims are unresolved, the NCUA Board is deprived of the quorum required to perform many statutory functions —including approving certain mergers; conserving and liquidating assets of failed credit unions; adjudicating supervisory determinations and share insurance claims; and operating the Central Liquidity Facility, which serves credit unions 'the same way that the Federal Reserve System discount window provide[s] access to loans for banks.’”
Contact Peter Strozniak at peter.strozniak@arc-network.com.
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