Score Two for Trump: D.C. Circuit Finds President Can Indeed Remove NLRB and MSPB Members

The Trump administration scored a solid win on Friday with an appellate court ruling in Harris v. Bessent and Wilcox v. Trump (combined on appeal).

Among the multitude of cases filed against President Trump and/or his administration since he returned to the Oval Office are a handful of matters challenging his authority to remove independent agency leaders from their various positions. We've seen multiple of these cases wend their way up the chain, with several landing before the Supreme Court, including both Harris and Wilcox, although Friday's ruling comes not from the high court, but from the D.C. Circuit Court of Appeals.

These companion cases have a rather elaborate procedural history, so I'm going to try and nutshell them:

Wilcox v. Trump
- Trump removed Gwynne Wilcox from her role as Acting Chairman of the National Labor Relations Board (NLRB) in late January.
- Wilcox sued in early February, asserting that statutory protections only allow for her removal from the role "for cause," and in early March, D.C. District Court Judge Beryl Howell (Obama) granted summary judgment in her favor.
- The administration appealed, and in late March, the D.C. Circuit granted its motion to stay the district court judgment pending appeal.
- However, the D.C. Circuit later granted Wilcox's motion for rehearing en banc and vacated its prior ruling (which, in practical effect, reinstated Wilcox to her NLRB role).
- The administration filed an application to stay the district court judgment with the Supreme Court, which subsequently granted that application.
- Meanwhile, the D.C. Circuit heard oral argument in the administration's appeal of the district court judgment...which brings us to today, and its decision reversing the district court judgment.

In similar fashion, Trump removed Cathy Harris from her role as a member of the Merit Systems Protection Board (MSPB) in early February. Harris, of course, sued, and D.C. District Court Judge Rudolph Contreras (Obama) granted her summary judgment in early March. The procedural history in Harris is virtually identical to Wilcox from the point of appeal on, since the cases were consolidated on appeal.

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In Friday's 2-1 decision, D.C. Circuit Judges Gregory Katsas (Trump) and Justin Walker (Trump) found that Congress cannot restrict the president’s ability to remove NLRB or MSPB members. In other words, the statutory restrictions prohibiting the removal of members of those agencies other than for cause are unconstitutional. Judge Florence Pan (Biden) filed a dissenting opinion.

The crux of the majority decision is this:

Under Humphrey’s Executor v. United States, 295 U.S. 602 (1935), Congress may restrict the President’s ability to remove principal officers who wield only quasi-legislative or quasi-judicial powers. But under Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power. As explained below, 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. So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.

Now...is this the end of the case(s)? No. We can expect Wilcox and Harris to petition for rehearing en banc — particularly given their success with the full court on the stay-pending-appeal issue. And after that, depending on some of the quasi-related Supreme Court rulings that are expected to be handed down this term, the cases could wind up back before the high court.

RedState will, of course, continue to follow the cases and report on developments as warranted.

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