LoginAppeals court backs Trump’s firings of MSPB, NLRB members
A three-judge panel ruled Friday that President Donald Trump’s firings without cause of Cathy Harris and Gwynne Wilcox, Democratic members on the Merit Systems Protection Board and the National Labor Relations Board, were lawful.
The split 2-to-1 panel decision of the D.C. Circuit Court of Appeals has no immediate effect, since both Harris and Wilcox’s firings were finalized in May. But Friday’s ruling comes as the Supreme Court is expected to soon hear arguments on whether to overturn a 90-year-old ruling known as Humphrey’s Executor — a decision that could expand Trump’s power to shape independent agencies.
In the 1935 Supreme Court ruling on Humprey’s Executor, the justices unanimously found that commissioners can be removed only for misconduct or neglect of duty, effectively limiting when presidents can fire board members.
But when Judges Gregory Katsas and Justin Walker ruled Friday in favor of Trump’s firings of Harris and Wilcox, they argued that MSPB and NLRB fall outside the limitations stemming from Humphrey’s Executor, and that the president can still “remove principal officers who wield substantial executive power.”
“The NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial,” the judges wrote. “So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.”
Judge Florence Pan, the dissenting panel member and a Biden appointee, argued that the two agencies do fall under the scope of Humphrey’s Executor, and that maintaining the independence of MSPB and NLRB is critical. She wrote that the Trump administration’s “extreme view of executive power sharply departs from precedent.”
“We may soon be living in a world in which every hiring decision and action by any government agency will be influenced by politics, with little regard for subject-matter expertise, the public good, and merit-based decision-making,” she wrote.
The MSPB is an independent agency responsible for adjudicating appeals from federal employees who allege prohibited personnel practices by their agencies. The NLRB investigates unfair labor practices in the private sector and oversees union elections. Both boards are typically composed of members of both political parties.
Trump fired both Wilcox and Harris within his first few weeks in office, but did not point to a specific reason for the terminations. Wilcox and Harris, both of whom were Democratic board members, sued the president over their removals, arguing that they are protected by a federal law meant to ensure MSPB and NLRB’s independence from political considerations — and that the president can only remove them “for inefficiency, neglect of duty, or malfeasance in office.”
Though a federal judge initially ruled the two terminations were unlawful, the Supreme Court reversed that decision in May, effectively green-lighting the finalization of the board members’ firings earlier this year.
In its May decision, the Supreme Court indicated that it was likely “that both the NLRB and MSPB exercise considerable executive power,” which it said would make restrictions on the president’s ability to fire them unconstitutional. Friday’s panel ruling aligns with the Supreme Court’s initial arguments.
The Supreme Court is expected to hear arguments Monday on Trump’s firing of Rebecca Slaughter, a Democratic member of the Federal Trade Commission — a case that may further influence the outcome of both Harris and Wilcox’s terminations.
The Associated Press contributed reporting.
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© AP Photo/J. Scott Applewhite
