Full DC Circuit Unfires—For Now—NLRB, MSPB Board Members That Trump Lawlessly Axed

The full U.S. Court of Appeals for DC has reinstated a member of the National Labor Relations Board and a member of the Merit Systems Protection Board that President Donald Trump tried to fire earlier this year. The court split 7-4.

The ruling — on a set of district court injunctions that paused the firings — is the latest in a back and forth over the fates of these two members of independent executive branch agency boards, a dispute that recently saw a three-judge panel of the DC Circuit allow the members to be fired, and that is likely Supreme Court-bound. Trump fired the two members, Cathy Harris of the Merit Systems Protection Board and Gwynne Wilcox of the National Labor Relations Board, in early February, moves that were quickly blocked at the district court level. The cases were later consolidated.

At stake is a precedent, Humphreys Executor, the overturning of which would have far greater implications than just the makeup of the two boards. The Trump administration DOJ has been explicit that it is seeking to overturn a long line of jurisprudence, of which Humphreys Executor is a cornerstone, protecting the independence of such agencies within the executive branch; these agencies are run by bipartisan boards, the members of which are confirmed by the Senate.

Should the Supreme Court overturn Humphreys Executor, it would open the door to bringing these agencies — which include the Federal Trade Commission, the Federal Reserve, the Federal Communications Commission, the Federal Elections Commission and dozens of others — more fully under Trump’s sway. Doing so would be a key victory for a faction of the conservative legal movement, which has long pushed the Unitary Executive Theory, imagining a powerful executive branch over which the President has sole authority. Its a vision the Trump administration is already bringing to life, even before the Supreme Court has fully cleared the way.

A 2-1 panel of the DC Circuit split in March over this question, with the two judge majority — comprised of a Trump appointee and a George H.W. Bush appointee — claiming that the Supreme Court had already sent clear signals that it intended to overturn Humphrey‘s Executor.

In a brief opinion Monday, chief Judge Sri Srinivasan pushed back on that interpretation, writing that while the Supreme Court has chipped away at agency autonomy in other areas, it “has repeatedly stated that it was not overturning the precedent established in Humphrey’s Executor and Wiener for multimember adjudicatory bodies. Instead, the Supreme Court has, in its own words, left that precedent ‘in place[.]'”

“The Supreme Court has repeatedly told the courts of appeals to follow extant
Supreme Court precedent unless and until that Court itself changes it or overturns it,” continued Srinivasan, an Obama appointee.

Judges Karen LeCraft Henderson and Justin Walker, the two who late last month were in the majority of the panel decision finding Humphreys Executor to be as good as overturned, dissented, and were joined by two others appointed by conservative presidents.

One of them, Judge Neomi Rao, wrote her own dissent nodding to a sweeping view of presidential power — “The Constitution vests all executive power in a single President […] The President has both the power and the responsibility to supervise and direct Executive Branch officers” as part of his mandate to “‘take Care that the Laws be faithfully executed’).”

She also denounced the lower-court injunctions — recently a frequent recent topic of conservative ire — in an argument that turned the executive branch power grab on its head. “Nothing in Anglo-American history supports the injunctive relief granted by the district court and restored by the en banc majority,” she wrote, later adding, “These orders effectively reappoint officers removed by the President and direct all other Executive Branch officials to treat the removed officers as if they were still in office.”

Read the full opinion below.