Justice Kagan Doth Protest Too Much About The Emergency Docket
In Trump v. Moyle, the Court granted a stay, and allowed President Trump to remove members of the Consumer Product Safety Commission. This order seems to follow from Trump v. Wilcox. The per curiam order states, “the case does not otherwise differ from Wilcox in any pertinent respect.” There has been some debate over the years on whether emergency docket rulings are precedential. I think that debate has been settled.
The vote here was (likely) 6-3. Justice Kagan wrote a dissent, joined by Justices Sotomayor and Jackson. Kagan once again complains that the Court “[o]nce again . . . uses its emergency docket to destroy the independence of an independent agency.” She writes that the “same majority” granted relief in both Moyle and Wilcox. With emergency docket rulings, it is not known that the same justices joined both majorities, but Kagan confirms the obvious. Kagan says that “majority has also all but overturned Humphrey’s Executor v. United States” (she’s right). Kagan also cites Justice Barrett’s concurrence in Doe v. Mills abut deciding cases “on a short fuse,” but I no longer think even Barrett agrees w
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