What happens when the President of the United States fires independent federal agency board members and they fight back? That’s the legal showdown unfolding between two former NCUA Board members and the Trump Administration. It’s a case that could send shockwaves well beyond the credit union industry.
In this revealing interview, The Credit Union Connection Founder/CEO Sarah Snell Cooke sits down with Henry Meier, Esq., to unpack what’s really at stake. If you’ve followed credit union policy, you know Henry as one of the most respected legal minds in the space. And if you haven’t? Now’s the time to start paying attention. (Article continues below. Be sure to watch the dang video!! Oh yeah, the transcript is below, too.)
The will they, won’t they? Two former Democratic members of the NCUA Board were abruptly and controversially dismissed by President Trump. In response, they sued to be reinstated. A lower court initially agreed with them, ordering that they could return to their posts. But before they could pack up their coffee mugs and head back to their offices, an appellate court stepped in and issued a stay, blocking the reinstatement while the appeal plays out.
The legal battle is bigger than two jobs or even one agency. According to Henry, this case is teeing up a direct challenge to Humphrey’s Executor, a Supreme Court precedent from 1935 that upheld the independence of regulatory agencies from direct presidential removal. If that precedent is revisited or overturned the entire structure of how independent federal agencies operate could change. That includes not just the NCUA, but the Consumer Financial Protection Board, the Federal Trade Commission and others.
“While the firing of Todd Harper and Tanya Otsuka is understandably sending a jolt through the credit union system, it is not surprising,” Henry opined. “Since his first days in office, President Trump has openly questioned the constitutionality of independent agencies … A strong argument can be made that the Supreme Court will overturn its own precedent in this area.”
Throughout the conversation, Henry breaks down what makes this case so legally complex and politically loaded. He walks us through the potential implications for future presidential authority, regulatory independence, and how credit unions might feel the ripple effects.
We also dive into why the Supreme Court is almost certainly the next stop for this case. With SCOTUS’ growing appetite for reassessing precedent and executive power, this legal standoff may become one of the defining constitutional rulings of the decade.
This isn’t just a courtroom drama. It’s a power struggle wrapped in constitutional theory, wrapped in the future of American regulatory governance.
If you care about the rule of law, checks and balances, or how credit unions and financial services in general are governed in the United States, this is a must-watch. Henry doesn’t just break it down, he puts it in context: where it’s going, why it matters and what you should be watching for next.
Watch the full interview now to hear Henry’s unfiltered take on the lawsuit, the precedent it’s challenging, and why it’s one of the most important cases credit unions—and possibly the entire country—will face in the coming years.
NOTE: The transcript below is automatically generated.
Sarah Cooke 00:01
Hello and welcome everybody. This is a very special edition of the credit union connection. I’m here with Henry Meier of The Law Firm of Henry Meier, and we’re here today. We’re just going to talk really quick about what the heck is going on with the NCUA board. You all know Henry from being here in the past as one of my repeat offender guests. Welcome Henry. I want to hear everything you’ve got to say about this craziness going on at NCUA.
Henry Meier 00:49
Welcome Sarah. Thanks. Thanks for having me back as usual. I hope to be on so thank you. This is a very interesting but unfortunately, not unique to NCUA situation. Okay, so if we could put this in context yesterday, well, I’ll put it back in even further for those of you not can you scroll at home now, if you remember Chairman Harper and board member trucker were removed from the board okay by the Trump administration. They sued, claiming that on several grounds, including that the removal was both unconstitutional and illegal as a matter of statutory interpretation. They won that case yesterday before the DC District Court. It was a the judge basically accepted every single one of their major arguments and and as a result, they are now they would argue that they are entitled to be active board members and they have to be reinstated to the NCUA board now the Trump administration in these situations has, of course, appealed. Now, here’s where we’re getting to the Alice in Wonderland, World of what’s called the shadow docket. Okay, if I could put this in context, we all are extremely aware of the normal, quote, unquote, Supreme Court process. You and I disagree. So we sue each other, we we one of us wins, that gets appealed, and if the we think we could still win, we can appeal to the Supreme Court, and if the supreme court accepts the case, you get a nice, winning decision, okay, explaining what side wins. The Shadow docket is basically everything else that doesn’t come into that neat group. But there is also a subset of the shadow docket called the emergency docket, in which is becoming increasingly used by the appellate system and by the Supreme Court itself. It used to be limited to death penalty cases, because clearly, if I’m dead, my the merits of my appeal won’t be a much use to me if the court rules me after the fact. So exactly, there’s a certain logic to this, but now we’re seeing applied to a whole bunch of situations. So the so my guess is that what you’re going to see happening, and what you already are seeing happening, is this, the Trump administration this morning, x, for a stay of the judges wrong, but said that they’re entitled to be be be back on the board. And by the way, there’s a board meeting tomorrow, and they said you’re entitled to be there the Trump administration, based on my reading in the light docket X, that that be stayed. In other words, they, let’s not put that into effect until we get to appeal it. Peel it. The court said, No, that’s not necessary. And fight now, last I checked about 40 minutes ago that, in itself, is being appealed as well. So this is another example of that shadow docket where the ultimate question is not so much the merits of the argument at this point, but whether or not the Trump administration is going to be allowed to freeze the order to reinstate the board members pending the resolution of the
Sarah Cooke 04:25
appeal. So why in the emergency docket become so important all of a sudden? Because it’s being used.
Henry Meier 04:34
It’s been used over the last 1013, years, let’s say 1015, years, to an extent that was not it was not previously used, and then it was super charged, frankly, in the latter part of the Trump administration. And not to be partisan about this. Now, both sides will do it if they think it’s to their advantage, but as a result, think of how tough this is for us. It. My job is to advise credit unions on the law. Okay? And increasingly, you’re getting these major decisions being made that have substantial impact without a winning decision, no matter who is this fight tonight, over the over the order, the order itself. No one has time to write a 1520, page decision. It will be a four sentence or one sentence saying, I know they are going to be reinstated and they can show up tomorrow, or hold on, we’re going to hold up on this. So it’s a really, it’s a really unique and in some ways troubling development within the system, because the bottom line is whether you agree or disagree with what side you agree with. I think we should all agree that there should be some written explanation for why something is being done. As soon as you make these time sensitive issues, though, that goes out the window, and the court in recent years has been willing to accept the argument that apparently, any time the government is denied action that would want to take that, that can be an emergency situation. Now
Sarah Cooke 06:08
the Supreme Court, the only case I remember hearing of related to cranes going to the Supreme Court was Field of Membership way back. Am I missing any do a lot of creating cases
Henry Meier 06:18
go this is, this is the only one that I’m coming on the spot there. So my guess is the only one I am aware of. I guess the only one, but the only one I am aware of is, of course, the credit union membership Access Act. Yeah, when I say the Supreme Court, it will either go to the Supreme Court on the cell docket, or at some point, if the appellate division comes to a different conclusion. And depending on how they it could be settled today in terms of the appellate structure, excuse me, in terms of the procedural posture, but ultimately, one way or another, I’ve always told you, this is going to end up before the Supreme Court, probably with a bunch of other cases that basically test the same issue. Okay, this, there’s two fundamental issues going on here, which are with one, the first issue is, there’s a case called Humphrey executive Okay, going back to 1935, on that area, President Roosevelt wanted to remove the chairman of the FTC, okay. He said, You can’t do that. I have a fixed term, okay? And President Roosevelt made an argument very similar to the one being advanced by the Trump administration. He says, on the executive the executive policies vested in me and I can get removed who I want to remove. And the Supreme Court said, No, we’re going to make an exception when you’re not when the agency in question, there’s more a judiciary adjudicatory in judge stuff than traditional agency stuff, we’re going to give that agency deference. Now, over the years, that’s been expanded to the extent that, basically, if Congress wants to set up an independent agency, it’s called, they’re allowed to do so. Okay, the conservative movement has always raised questions about that. As you can see, it doesn’t have to be conservative either. President Roosevelt was no conservative, but starting with what, what the court said in its COPD decision, in which it validated a single board and said that, hey, that director has to be single, single director. And he said that that director had to be subject to the oversight of the presidency, of the president. Then it wasn’t too much of a leap to say, let’s begin questioning this whole concept that that of Humphrey’s executive so that’s the constitutional issue, and then you have the more pedestrian but just as important question of, What did Congress intend when it set up the current structure for the NCUA in 1978 for those of you who don’t know, it, actually is a really interesting, interesting Story. 1976 the board member we see was basically overseen by a single member, a single director with a volunteer to advisory board up court. He complains to Congress that the system is not good because he could be fired at any time. President Ford accommodates him by firing him within three hours of that comment or a day of that comment. I don’t want to exaggerate, and then there’s a whole and so in response to that, the Congress passes a new structure, three member board with fixed terms that is much more analogous to independent agencies than the NCUA previously had. Now as a result of this research and this litigation, what we’ve now come to realize, and maybe people realize it, but never thought it would be an issue, is that the there are certain terms that catch phrases you look for in the statutes when we’re dealing with independent agencies that are supposed to be given some protection from. Reform, in other words, for cause removal. That term for cause, for instance, is not in the NCUA statute. So the point I decided was, you know, first of all, is Humphrey still good with law, it said, until the Supreme Court decides otherwise. I say this, and I he has to respect president, so I understand that. And then he’s saying, as a matter of statutory interpretation, you have to look at this statute in the context of why it was created, and clearly, this was done in response to the removal by President Ford of the directive. And now the purpose was to give people protection against precisely what’s going on here. That’s the argument made by the board members, and that’s the one that the court has, this Court accepted, but it is going to be appealed, and we have not heard the final word at all. This is just the first battle in what’s going to be a very it was going to be a really big, big fight.
Sarah Cooke 10:59
And what are your final thoughts? How’s this going to affect credit unions going in the
Henry Meier 11:05
that’s the bottom line, right? Like if it was just an academic issue, it would be fun for both professors and people like me. But what does it matter? And really, the question is, well, does what? What can the NCUA do? I know, for instance, a few weeks ago, the NCUA joined with other agencies in exempting soon, BSA requirements regarding the collection of 10s, well, taxpayer identification numbers. Well, what’s the status of that? What’s the status of mergers. And really, these are all open questions that the longer this goes on, figure Louise issues is to and it is going to so it’s going to stifle to the extent you need to think that this stuff that has to be done, this doesn’t help. Okay, that’s and that’s the most practical impact, I would put a suggestion out to my fellow credit union people that some people are saying, you know, Henry, let’s be honest about this. We wanted mandate relief. This is the ultimate mandate relief, and I understand that in the short to medium term, but my only, my only thing I want to remind you is, if you okay with President Trump having this with the executive branch, with this President having this much power, would you be as comfortable with a President Sanders having the same power, and to the extent you know you can do that honestly and say, Okay, I’m fine with that. Then we all have a stake in making sure we have a stable, methodical, legislative, judicial and regulatory process. And right now it’s questionable if that the system is free.
Sarah Cooke 13:00
Alright. Well, thank you so much for your time and in your insight, Henry, appreciate it. We’ll have you back on when there’s the next movement in the case.
Henry Meier 13:06
Thank you very much. And I think everyone’s tuned in to tomorrow’s board meeting to see what happens. It could be the most exciting event on C span since it could be C span equivalent of of Muhammad Ali versus Frazier, pay per view.
Sarah Cooke 13:21
It’s gonna be Pay Per View event!