A divided D.C. Circuit Court of Appeals ruled 2-1 that President Trump lawfully removed two members of independent agencies, concluding they wield enough executive power to be fired without the “for cause” protections normally afforded to such officials.
The case involves Cathy Harris, a Democratic member of the Merit Systems Protection Board (MSPB), and Gwynne Wilcox, a Democratic member of the National Labor Relations Board (NLRB). Both were dismissed by Trump within weeks of his taking office, and the administration did not cite conventional justifications like neglect of duty or malfeasance.
Lower courts had ordered the officials reinstated, relying on the Supreme Court’s 1935 Humphrey’s Executor decision, which limited the president’s removal power over officers of agencies whose functions are predominantly quasi-judicial or quasi-legislative rather than purely executive. The government appealed, and the Supreme Court in May issued an emergency order allowing the firings to remain in effect while the dispute proceeds.
In the appeals court majority opinion, Judge Gregory Katsas, appointed by Trump, emphasized the MSPB’s and NLRB’s substantive rulemaking authority and their broad remedial powers, such as ordering reinstatement and back pay. Those features, he wrote, support the conclusion that the agencies exercise significant executive power and thus their members are subject to presidential removal at will.
Katsas expressly avoided deciding whether the president may remove officers of agencies that are “purely adjudicatory,” and he did not address whether officials at bodies like the Federal Reserve retain protection from removal.
Judge Florence Pan, a Biden appointee, dissented. She argued that the MSPB and NLRB do not in fact exercise substantial executive authority and warned that upholding the president’s ability to oust members without cause risks politicizing routine agency decisions. “We may soon be living in a world in which every hiring decision and action by any government agency will be influenced by politics,” she wrote, raising concerns about impacts on expertise, the public good, and merit-based decision-making.
The appeals court ruling follows the Supreme Court’s interim finding that the government was likely to show the agencies exercise considerable executive power; the high court is set to hear related arguments soon.
