Today the Supreme Court issued a brief opinion stating that President Trump's decision to fire members of two independent boards could stand for now.
The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents, see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 215−218 (2020). The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power. But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument.
This battle has been ongoing since the early days of Trump's 2nd term. Back in January, President Trump fired Democratic member of the National Labor Relations Board Gwynne Wilcox. He fired Cathy Harris from the Merit Systems Protection Board in early February.
Wilcox was nominated to the NLRB by the Biden administration in 2023 and became the chair of the board last year. Normally she would serve a 5-year term and could not be fired except for cause. But President Trump put that to the test. Both the NLRB and the MSPB have been considered "independent agencies" whose board members are not fireable without cause, not even by the president. Both Wilcox and Harris filed suits claiming their firings were illegal and by March, both had won their cases in lower courts.
In a 36-page ruling, U.S. District Judge Beryl Howell, who sits on the U.S. District Court in Washington, said that the Constitution and past decisions make clear that Congress can limit the president's removal power. She ruled that the president's firing of Gwynne Wilcox from the NLRB violated federal law that allows for a board member to be removed only for "neglect of duty or malfeasance in office," and declared her termination void.
"Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy," Howell wrote in a 36-page decision. "An American president is not a king — not even an 'elected' one — and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here."...
The court found that a Supreme Court decision from 1935 binds the outcome of Wilcox's case. That case carved out an exception to the president's power to remove executive officers.
At the root of this argument is a 1935 decision called Humphrey's Executor v. United States:
The unanimous 1935 Supreme Court ruling established that presidents cannot fire the appointed leaders of the alphabet soup of federal agencies without cause.
But that decision has long rankled conservative legal theorists who argue that the Constitution vests immense power in the president and they reject limits imposed by Congress and upheld by the courts.
Naturally, the court's 3 liberals dissented from today's decision and praised Humphrey's Executor as longstanding precedent.
For 90 years, Humphrey’s Executor v. United States, 295 U. S. 602 (1935), has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control. The two such agencies involved in this application are the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB). But there are many others— among them, the Federal Communications Commission (FCC), Federal Trade Commission (FTC), and Federal Reserve Board. Congress created them all, though at different times, out of one basic vision. It thought that in certain spheres of government, a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good. And that congressional judgment, Humphrey’s makes clear, creates no conflict with the Constitution.
The possibility that this lawsuit is going to lead to the end of the NLRB as we know it is now sinking in with some on the left.
It seems increasing likely that Gwynne Wilcox’s lawsuit challenging Donald Trump’s attempt to fire her in the middle of her five-year term as a Member of the National Labor Relations Board will, one way or the other, result in the end of the NLRB as we have known it...
The Court has already chipped away at Humphrey’s Executor. In 2020, in Seila Law LLC v. Consumer Financial Protection Board, a 5-4 Court held that the Humphrey’s Executor rule does not apply where an agency exercising “significant executive power” is headed by a single director...
The D.C. Circuit recently heard oral argument in the Wilcox case. Two of the three judges on the panel are Trump appointees. One of those judges, Justin Walker, previously staked out his pro-Trump position in an opinion staying the district court’s judgment in favor of Wilcox. The other Trump appointee, Gregory Katsas, was more guarded. One issue in the case is whether the NLRB exercises substantial executive power. In an attempt to persuade Katsas, Deepak Gupta, Wilcox’s highly-skilled lawyer, suggested that after Loper Bright, the NLRB doesn’t make policy because the courts will no longer give deference to any of its rulings. Gupta then tried to walk that back when Walker pointed out that the NLRB (correctly) continues to argue for deference post-Loper. But Gupta’s instinct to make the concession in the first place illustrates how even if this right-wing Supreme Court lets the NLRB survive, the Board may be severely compromised.
The NLRB won't end but it really may be hollowed out once this case winds its way back up. Today's ruling is a hint that's where this is probably headed.
