DC Circuit allows Trump to fire independent agency board members, for now; are administrative judges at risk?
The E. Barrett Prettyman Federal Courthouse on Judiciary Square in Washington, D.C., is home to the U.S. Court of Appeals for the District of Columbia Circuit. (Photo from Shutterstock)
The U.S. Court of Appeals for the District of Columbia Circuit on Friday allowed President Donald Trump to fire board members of two independent executive branch agencies while a legal challenge continues.
In a 2-1 decision, the D.C. Circuit blocked the reinstatement of Cathy Harris of the Merit Systems Protection Board and Gwynne A. Wilcox of the National Labor Relations Board.
Politico, Law360, the Washington Post and the New York Times have stories.
The New York Times called the decision an endorsement of Trump’s “expansive view of executive powers in a case that many legal observers believe is headed for the Supreme Court.”
The NLRB enforces labor laws, while the MSPB considers workplace disputes by federal employees. Boards overseeing the agencies resolve appeals following decisions by administrative law judges.
The D.C. Circuit granted the government’s emergency motion for a stay in a per curiam order that did not explain its reasoning. All three judges wrote separate opinions.
Their decisions debate whether a 1935 U.S. Supreme Court decision still protects members of multimember boards with statutory protections against removal and, if so, whether administrative law judges could also be fired by a president.
A concurrence by Judge Justin R. Walker said the government was likely to succeed in arguments that statutory protections against removal of the board members are likely 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,” Walker said.
Walker cited a June 2020 Supreme Court decision that has found that Congress can’t constitutionally impose a for-cause requirement for the removal of the director of the Consumer Financial Protection Bureau. That case is Seila Law v. Consumer Financial Protection Bureau.
Seila Law is in tension with the 1935 Supreme Court decision Humphrey’s Executor v. United States, according to prior coverage. The high court held in that case that Congress can prevent a president from removing without cause members of the Federal Trade Commission, a multimember independent agency.
Walker said Humphrey’s Executor “has few, if any, applications today.”
Judge Karen LeCraft Henderson said she agreed with many principles discussed in Walker’s opinion “although I view the government’s likelihood of success on the merits as a slightly closer call.”
Judge Patricia Millett dissented.
“The whole purpose of a stay is to avoid instability and turmoil,” she wrote. “But the court’s decision today creates them.”
The stay decision, she argued, is a “wholly unwarranted use of this court’s stay power, which is meant only to maintain the status quo pending an appeal.”
Millett said the stay order eliminates a quorum for the NLRB and the MSPB, “disabling agencies that Congress created and funded from acting for as long as the president wants them out of commission.”
Seila Law involved removal protection for a single head of an agency who exercises substantial executive power, Millett said. Humphrey’s Executor, on the other hand, involved removal protections for members of a five-member board of the Federal Trade Commission whose functions were “quasi-judicial and quasi-legislative,” she said.
“Agencies are not the only entities at risk under the majority opinion’s new regime,” she wrote. “Given the primarily adjudicatory nature of the MSPB and the NLRB, it is difficult to understand how the majority opinion’s rule does not eliminate removal restrictions on non-Article III judges, including judges of the Court of Federal Claims, the bankruptcy courts, the Court of Appeals for Veterans Claims and the Court of Appeals for the Armed Forces.”
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