A divided D.C. Circuit Court of Appeals ruled 2-1 that President Trump lawfully removed two members of independent agencies, finding they exercised enough executive authority to be dismissed without the “for cause” protections typically afforded to such officials.
The dispute 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 removed by the Trump administration within weeks after he took office; the administration did not point to traditional reasons such as neglect of duty or malfeasance.
Lower courts had ordered the officials reinstated, relying on the Supreme Court’s 1935 Humphrey’s Executor precedent, which limits the president’s removal power over officers of agencies whose functions are mainly quasi-judicial or quasi-legislative rather than purely executive. The government appealed, and the Supreme Court issued an emergency order allowing the firings to remain in effect while the legal challenge continues.
In the appeals court majority opinion, Judge Gregory Katsas, a Trump appointee, emphasized the MSPB’s and NLRB’s substantive rulemaking authority and broad remedial powers—such as the ability to order reinstatement and back pay. He concluded those features indicate the agencies exercise significant executive power and that their members therefore can be removed at the president’s discretion.
Katsas declined to resolve whether officers of agencies that are “purely adjudicatory” would be removable, and he did not address whether officials at entities like the Federal Reserve retain removal protections.
Judge Florence Pan, a Biden appointee, dissented. She argued the MSPB and NLRB do not exercise substantial executive authority and warned that permitting removals without cause risks politicizing routine agency decisions. In her view, that shift could undermine expertise, merit-based decision-making, and decisions made in the public interest.
The appeals court ruling follows the Supreme Court’s interim assessment that the government was likely to show the agencies exercise considerable executive power. The high court is scheduled to hear related arguments as the dispute proceeds through the courts.