Merit Systems Defense Council member Kathy Harris (left) and National Labor Relations Board member Gwynne Wilcox (right) were fired by President Trump earlier this year. A panel of judges on the D.C. Circuit Court of Appeals says the firings were lawful.
Mike Scarcella/Reuters; FM Archive/Alamy Stock Photo
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Mike Scarcella/Reuters; FM Archive/Alamy Stock Photo
The D.C. Circuit Court of Appeals ruled 2 to 1 that President Trump acted lawfully in firing two members of independent agencies despite federal laws that say they can only be fired for cause because they wield significant executive power.
The decision comes as the Supreme Court prepares to hear arguments in a similar case on Monday.
The case, which was decided by the appeals court, was brought by Kathy Harris, a Democratic member of the Merit System Defense Council, and Gwynne Wilcox, a Democratic member of the National Labor Relations Board. Trump fired both within weeks of taking office, but did not give any valid reason, such as neglect of duty or malfeasance in office.
The MSPB hears appeals by federal employees regarding personnel actions taken by the government. The NLRB hears appeals in unfair labor practice cases and oversees union elections, among other duties. Both have several members, appointed by the president and confirmed by the Senate, who serve varying terms.
Lower courts initially ordered the two officials to be reinstated, citing a 1935 Supreme Court decision known as Executioner Humphrey. In this unanimous decision, the court held that while the President has the power to remove purely executive officers for any reason, this unlimited power does not extend to agencies whose duties are “neither political nor executive, but primarily quasi-judicial and quasi-legislative”.
The Trump administration appealed, and in May the Supreme Court issued an emergency order allowing the dismissals of Harris and Wilcox to be put on hold while their overall case was heard on the merits.
“The suspension reflects our view that the government is likely to demonstrate that both the NLRB and MSPB have significant executive authority.” the Supreme Court majority wrote in an unsigned order.
On Friday, DC Circuit lived up to that prediction. In the majority opinion, U.S. District Court Judge Gregory Katsas, a Trump appointee, cited the core rulemaking powers of the MSPB and NLRB, as well as those agencies' broad powers to order things like reinstatement and back pay.
Katsas declined to answer a question about whether the president can still fire officers from agencies that are “purely judicial” in nature, nor did he delve into the thorny question of whether members of the Federal Reserve should remain insulated from the president's reach.
U.S. District Court Judge Florence Pan, a Biden appointee, dissented. She argued that the MSPB and NLRB do not actually have significant executive power and warned of the consequences of giving the president control over such bodies.
“We may soon live in a world in which every hiring decision and action of every government agency is influenced by politics, with little emphasis on subject matter expertise, the public good, and merit-based decision making,” she wrote.
