This is a big win for the Trump administration. An appeals court just issued a 2-1 decision overturning lower court opinions which found Trump’s firings at the National Labor Relations Board and the Merit Systems Protection Board illegal. In essence, the appeals court said President Trump could go ahead and fire them, at least until the underlying case is decided.
A three-judge panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit divided 2-1 in agreeing to halt the lower court orders that voided Mr. Trump’s firings of Gwynne Wilcox from the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board while legal proceedings move forward.
Wilcox and Harris had argued that their firings violated federal laws that limited their removals only for neglect of duty or malfeasance in office. The Trump administration, meanwhile, defended the terminations and said the restrictions on the president’s ability to remove the officials are unconstitutional.
“The people elected the president to enforce the nation’s laws, and a stay serves that purpose by allowing the people’s chosen officer to control the executive branch,” Judge Justin Walker, who was appointed by Mr. Trump in his first term, wrote in an opinion siding with the administration…
“The people elected the president, not Harris or Wilcox, to execute the nation’s laws,” he said. “The forcible reinstatement of a presidentially removed principal officer disenfranchises voters by hampering the president’s ability to govern during the four short years the people have assigned him the solemn duty of leading the executive branch.”
The third judge in this case, the one who voted against overturning the lower court rulings, is an Obama appointee.
The backstory here is that there has been an ongoing argument about whether or not the president has the power to fire high level appointees within the executive branch or whether congress has the constitutional ability to set up “independent” executive agencies such as the NLRB whose leaders cannot be fired by the president.
In this case, Gwynne Wilcox was nominated to the NLRB by the Biden administration in 2023 and became the chair of the board last year. Normally she would serve a 5-year term and could not be fired except for cause. But at the end of January, President Trump put that to the test by firing Wilcox and Cathy Harris from the Merit Systems Protection Board which oversees the firing of government employees.
Those firings were challenged in court and earlier this month two different judges ruled the firings were illegal.
District Judge Rudolph Contreras handed a major victory to Cathy Harris, chair of the Merit Systems Protection Board, an independent agency that has the power to review and reverse federal employee firings. The little-known board has taken on new importance as Trump initiates mass government layoffs, leading to thousands of firings, and more on the way.
The judge ruled that Harris can remain on the board for the rest of her term, which expires in 2028, unless she is fired for cause, as specified by the statute that established the MSPB. Trump administration officials didn’t cite any cause when they attempted to fire her in early February.
“The President thus lacks the power to remove Harris from office at will. Because the President did not indicate that he sought to remove Harris for inefficiency, neglect of duty, or malfeasance in office, his attempt to terminate her was unlawful and exceeded the scope of his authority,” Contreras wrote Tuesday in a 35-page ruling.
Two days later, a different DC judge appointed by Barack Obama reached the same conclusion about Wilcox’s firing.
In a 36-page ruling, U.S. District Judge Beryl Howell, who sits on the U.S. District Court in Washington, said that the Constitution and past decisions make clear that Congress can limit the president’s removal power. She ruled that the president’s firing of Gwynne Wilcox from the NLRB violated federal law that allows for a board member to be removed only for “neglect of duty or malfeasance in office,” and declared her termination void.
“Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy,” Howell wrote in a 36-page decision. “An American president is not a king — not even an ‘elected’ one — and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here.”…
The court found that a Supreme Court decision from 1935 binds the outcome of Wilcox’s case. That case carved out an exception to the president’s power to remove executive officers. The Supreme Court found that Congress could impose for-cause removal protections for multi-member commissions of experts that are balanced along partisan lines and do not exercise any executive power.
This would have led to both of them being reinstated for the remainder of their terms but the Trump administration appealed to the DC Court of Appeals asking it to put a hold on that. And today they won.
It seems most people who’ve been watching this believed this was headed for the Supreme Court all along. Ultimately, they are going to have to decide whether the president can do this or whether the congress can limit his power to fire people based on a 90-year-old decision called Humphrey’s Executor v. United States which found that the president could not fire the Federal Trade Commissioner.
The unanimous 1935 Supreme Court ruling established that presidents cannot fire the appointed leaders of the alphabet soup of federal agencies without cause.
But that decision has long rankled conservative legal theorists who argue that the Constitution vests immense power in the president and they reject limits imposed by Congress and upheld by the courts.
They say the modern administrative state gets the Constitution all wrong and that all federal agencies that are part of the executive branch answer to the president. That includes his ability to fire their leaders at will.
The current Supreme Court, with a conservative majority that includes three justices nominated by Trump, has at times agreed.
So that’s what is really at issue here. It’s very possible that Humphrey’s Executor v. United States gets overturned by the Supreme Court which would put an end to a lot of independent leaders in the executive branch. That would mean Trump could fire them now but also that a future Democratic president could do the same to board members appointed by Trump.
