For the first—but not last—time, the US Supreme Court weighed in on President Donald Trump’s removal of Gwynne Wilcox, a Biden-appointed National Labor Relations Board (NLRB) member (whose removal we discussed in a prior post), and Cathy Harris, a Biden-appointed Merit Systems Protection Board (MSPB) member. Chief Justice Roberts’ April 9 order temporarily stayed the D.C. Circuit’s en banc decision permitting Wilcox and Harris to resume their duties at their respective agencies, effectively re-removing them following their reinstatement by the D.C. Circuit. The most significant consequence of that action is that, once again, the NLRB lacks a quorum, and thus cannot decide cases.
Chief Justice Roberts’ order, which did not address the merits of the case, sets the stage for the Supreme Court to further clarify the scope of the President’s power to remove government officials of multi-member boards like the NLRB and MSPB. Such clarification will almost certainly require the Court to re-examine its 1935 decision in Humphrey’s Executor v. FTC, which held that Congress can impose for-cause removal protections on multi-member boards of independent agencies (in that case, FTC commissioners). The Court reasoned that such removal protections did not unconstitutionally interfere with executive power due to the FTC’s structure (e.g., the FTC’s board was designed to be non-partisan and act with impartiality; the FTC’s duties called for the trained judgment of experts informed by experience; and the commissioners’ staggered terms allowed for the accumulation of technical expertise while avoiding a wholesale change of leadership at any one time). But now, 90 years later, Humphrey’s Executor and its progeny find themselves within the Government’s crosshairs, as the Government insists that the President’s Article II obligation to “take Care that the Laws be faithfully executed” empowers the president to remove, at will, members of multi-member boards such as the NLRB and MSPB, notwithstanding the for-cause removal requirements embedded in the statutes governing those boards.
The Court’s resolution of these two conflicting views of presidential power could have sweeping implications. A decision overruling or paring back Humphrey’s Executor could call into question the constitutionality of the structure of even more independent agencies, such as the Federal Reserve and the National Transportation Safety Board. In such a scenario, for example, a win for the Government could give President Trump the green light to remove Jerome Powell, Chair of the Federal Reserve, about whom he recently commented that his “termination cannot come soon enough .”
We are closely monitoring this litigation and will track additional developments as it progresses through the court system.