The D.C. Circuit Court of Appeals Friday granted the Trump administration’s request to lift lower-court rulings that required it to reinstate two wrongfully dismissed members of independent federal agencies.
The court’s 2-1 vote is a notable win for President Donald Trump, as it upholds his dismissal of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris as litigation challenging their firings continues.
The Trump administration fired Wilcox and Harris without cause despite federal laws specifying that NLRB and MSPB members can only be removed by presidents for specific causes, like malfeasance.
Lower-court judges found that both dismissals violated federal laws that established the NLRB and MSPB, two independent federal agencies that Congress designed to operate without direct control from the White House.
Harris’s dismissal would cripple the MSPB, which protects the rights of federal employees to challenge illegal personnel practices, like firing workers based on partisan politics.
Wilcox’s dismissal would leave the NLRB with only two members, meaning it can’t form the three-member quorum that’s needed to take formal actions, like arbitrate disagreements between employees and employers or resolve contested union elections.
Two seats were vacant on the NLRB at the time of Wilcox’s dismissal, meaning Trump fired her despite already having the opportunity to nominate officials and return the board to a Republican majority.
Wilcox’s and Harris’ removals are part of the Trump administration’s ongoing efforts to challenge Humphrey’s Executor v. U.S., a 90-year-old Supreme Court ruling that found the “for-cause” provisions protecting officials on multimember federal boards and commissions constitutional.
“The stay order strips the National Labor Relations Board and the Merit Systems Protection Board of the quora that the district courts’ injunctions preserved, disabling agencies that Congress created and funded from acting for as long as the President wants them out of commission,” Judge Patricia Millett, in a dissenting opinion, said.
“That decision will leave languishing hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities,” Millett, who was appointed to the bench by former President Barack Obama, added.
Trump’s Department of Justice has stated it believes for-cause provisions and other congressional limitations on the president’s removal power are unconstitutional and that it will urge the Supreme Court to overturn Humphrey’s Executor.
If the Supreme Court overturns decades of precedent, Trump could gain unprecedented power to fire members of independent bodies, including those that regulate the economy, the stockmarket, federal campaign finance and communications.
Trump has fired several other officials in his effort to expand the president’s removal power, including former Special Counsel Hampton Dellinger, who dropped his dismissal lawsuit after the D.C. Circuit Appeals Court granted Trump’s request to stay a lower-court order requiring his reinstatement.