First the news and then I'll try to explain the somewhat confusing backstory behind this. Today the DC Court of Appeals sided with President Trump in a 2-1 decision, agreeing he has the authority to fire members of "independent" boards like the National Labor Relations Board.
The U.S. Court of Appeals for the District of Columbia is siding with President Donald Trump in his effort to remove Democratic appointees from a pair of federal labor enforcement agencies without cause.
A split three-judge panel on Friday handed down a reversal of lower-court rulings that found the White House’s removal of Cathy Harris from the Merit Systems Protection Board and Gwynne Wilcox from the National Labor Relations Board were improper because of statutory protections insulating them from being fired except for limited reasons including “neglect of duty or malfeasance in office.”
The appeals court majority ruled that “Congress cannot restrict the President’s ability to remove NLRB or MSPB members” because the two agencies exert substantial executive branch authority.
These boards were established by congress with a group of board members who are appointed by the various president for a term of years. Sometimes the board has a conservative majority and sometimes it has a progressive majority. But the law said the president was not allowed to fire members of the board except for cause, usually taken to mean some kind of serious legal or ethical problem.
Both Cathy Harris and Glynne Wilcox were appointed by President Biden and had terms that weren't set to expire for several more years. President Trump fired Harris from the MSPB, which handles cases involving government workers, and Wilcox from the NLRB, which handles labor cases, without citing any cause. Instead, he made the argument that as president he had the authority to fire them at any time because they worked for him as part of the executive branch.
Harris and Wilcox promptly sued to get their jobs back and both cases then became pinballs working their way through the system. District courts initially sided with them and said, essentially, that they weren't fired and could return to work. The DC court of appeals then got the case and the government asked for a stay which would prevent Harris and Wilcox from returning to work while the case was being decided by a three judge panel. In March that panel of judges agreed to a stay but a month later the full DC Court of Appeals overturned the stay. Again, this wasn't a decision on the merits of the case, that would take months. This was just a decision about whether or not Harris and Wilcox could continue to work while the case was before the Appeals Court.
Is your head spinning yet? We're still not done.
At this point, the decision to end the stay meant Harris and Wilcox would be returning to work while the court deliberated. And that's what would have happened except the Supreme Court stepped in a few weeks later and stopped it. So now the case was still being heard by the DC Court of Appeals but Harris and Wilcox were not returned to work pending the final outcome, which happened today.
But today's decision by the Court of Appeals doesn't really matter because the real show is at SCOTUS. In it's May decision, the Supreme Court found it likely "that both the NLRB and MSPB exercise considerable executive power" and therefore the restrictions on the president firing them were likely going to be found unconstitutional. In other words, SCOTUS tipped its hand that it was going to revisit a case called Humprey's Executor.
In 1935, the justices ruled that President Franklin D. Roosevelt could not fire a board member of the FTC, William Humphrey, simply because he opposed the president’s New Deal policies. Congress had stipulated members could only be fired for “inefficiency, neglect of duty, or malfeasance.” The case is known as Humphrey’s Executor.
The current Supreme Court has all but overturned that precedent in recent rulings. The justices allowed Trump to fire Democratic members of the Consumer Product Safety Commission in July and members of the National Labor Relations Board and Merit Systems Protection Board in May. Trump gave no reasons for the officials’ dismissals, despite statutes saying they could only be removed for cause.
The actual case the Justices will use to revisit Humphrey's Executor is called Trump v. Slaughter. It will have oral arguments at the Supreme Court next Monday. Huffington Post is already outraged.
Rarely does a blockbuster case that would radically alter the balance of power between the president and Congress come before the Supreme Court in which the outcome is already well-known. But that’s the case in Trump v. Slaughter, which the court will hear Monday...
The case now centers around one of those fired officials, Federal Trade Commission member Rebecca Slaughter. She sued the Trump administration charging that, under Humphrey’s Executor, she could not be fired unless for cause and she should be reinstated into her position on the FTC. Lower courts agreed. But Trump appealed to the Supreme Court where the court’s six conservative justices sided with the president for the short term, allowing Slaughter to be removed while they heard the case.
It was, in effect, a signal that they would overturn Humphrey’s Executor, ending all independent agencies across the executive branch — and handing Trump even more of the autocratic power he has already begun to exercise.
It's "autocratic power" now because Trump is exercising it, but you can bet the first time a Democratic president does the same thing, Democrats won't say a word.
In any case, it is true that Trump v. Slaughter looks very much like a foregone conclusion. SCOTUS has already signaled that it intends to overturn Humphrey's Executor. That means all of these cases involving board members will be resolved in favor of Trump's ability to fire them once SCOTUS issues a final decision sometime next summer. So today's decision from the DC Court of Appeals doesn't really matter except as a passing win for the White House and a sign of which way the wind is blowing.
Editor’s Note: Do you enjoy Hot Air's conservative reporting that takes on the radical left and woke media? Support our work so that we can continue to bring you the truth.
Join Hot Air VIP and use the promo code FIGHT to get 60% off your VIP membership!
Join the conversation as a VIP Member