A three-judge panel of the D.C. Circuit stayed lower-court orders preventing President Trump from removing officers of the National Labor Relations Board and the Merit Systems Protection Board at will.
The emergency ruling means that President Trump can remove those officers–and deprive the agencies of a quorum–pending appeal. One plaintiff already asked the full D.C. Circuit to issue an administrative stay of the panel's ruling. (The full docket is here.)
This fast-moving case, Harris v. Bessent, which consolidates a case involving the NLRB and another one involving the MSPB, is significant, because it tests the reach of Humphrey's Executor v. United States, which upheld for-cause removal protections for members of the FCC, and, more generally, tests the reach of the unitary executive theory.
Two judges on the panel sharply limited Humphrey's Executor to its precise facts, writing that the case means only that the President cannot remove officers of multi-member agencies like the FTC in 1935 (the subject of that case), which do not wield significant executive authority. But according to those two judges, the NLRB and the MSPB do wield significant executive authority. Therefore, Humphrey's Executor does not apply, the for-cause removal protection for officers of those agencies is invalid, and the President may remove officers of those agencies at will. (The two judges in the majority differed slightly in their assessments of how close a case this is. But they essentially applied the same reasoning.)
This matters, because Congress designed the NLRB and MSPB (and certain other multi-member agencies) to be able to do their jobs independently, and without political influence. Congress protected that independence with the for-cause removal protection for officers of these agencies. Without for-cause removal, the President may remove officers at will, or for purely political reasons, even, as here, depriving them of a quorum to do their statutorily-mandated and congressionally-funded jobs.
Judge Millett, dissenting, summarized the stakes:
The two opinions voting to grant a stay rewrite controlling Supreme Court precedent and ignore binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits. The stay decision also marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.
What is more, the stay order strips the National Labor Relations Board and the Merits Systems Protection Board of the quora that the district courts' injunctions preserved, disabling agencies that Congress created and funded from acting for as long as the President wants them out of commission. That decision will leave languishing hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities. In addition, the majority decisions' rationale openly calls into question the constitutionality of dozens of federal statutes conditioning the removal of officials on multimember decision-making bodies–everything from the Federal Reserve Board and the Nuclear Regulatory Commission to the National Transportation Safety Board and the Court of Appeals for Veterans Claims.