On March 28, the D.C. Circuit stayed two lower court rulings that had reinstated Democratic appointees Gwynne Wilcox (NLRB) and Cathy Harris (MSPB) after President Trump removed them without cause earlier this year. The appellate court’s 2–1 decision clears the way, for now, for the President to oust members of independent agencies despite statutory tenure protections.
🚨 Why it matters
The ruling temporarily disables the NLRB and MSPB, both of which now lack a quorum to decide cases. The real story is constitutional: the decision signals a dramatic narrowing (perhaps impending death) of a 1935 Supreme Court case known as “Humphrey’s Executor.” That case allowed Congress to insulate some agency officials from at-will removal.
🧵 What the D.C. Circuit Held
🧩 Majority (Judges Walker and Henderson)
1️⃣ Agencies like the NLRB and MSPB wield substantial executive power insofar as they issue binding decisions, enforce federal law, and affect private rights. That brings them squarely within the President’s Article II removal power, as defined by Supreme Court Cases Seila Law v. CFPB (2020), Collins v. Yellen (2021), and Free Enterprise Fund v. PCAOB (2010).
2️⃣ Because Humphrey’s only applies to “multimember, bipartisan expert boards that do not wield substantial executive power,” its protection doesn’t extend here.
3️⃣The government, not the removed officials, suffers irreparable harm when the President’s control over the executive branch is blocked.
💥 Judge Walker’s concurrence is particularly forceful, framing the case as a clash between constitutional structure and congressional encroachment. He argues that Seila Law and Collins leave Humphrey’s as a doctrinal outlier “on jurisprudential life support.” His message: the Executive Branch must answer to the people, not to statutory insulation.
🛑 Dissent (Judge Millett)
Judge Millett calls the stay “a revolution in the law that the Supreme Court has expressly avoided.” She warns that the ruling strips the boards of quorums, paralyzes agency function, and contradicts decades of precedent. She also notes this is the first time any appellate court has allowed the termination of members of adjudicatory boards protected by for-cause removal statutes.
⚖️ A few legal wrinkles:
Neither Wilcox nor Harris was removed for cause, nor did the government argue that they met the statutory removal standard. Instead, the Trump administration claimed the statutes protecting them (29 U.S.C. § 153(a) and 5 U.S.C. § 1202(d)) are unconstitutional. No president had ever removed a sitting NLRB or MSPB member mid-term before this. Judge Walker’s answer: history is nice, but Article II and Supreme Court precedent control.
🔮 What’s next
Expect a fast-track appeal to SCOTUS. All of this is about a much bigger issue: the scope of Presidential power.
📝 Bottom line
The D.C. Circuit’s decision deepens the judiciary’s turn toward the “unitary executive” theory. For employers, this could usher in more ideologically driven agency reshuffling and fewer procedural safeguards insulating boards from the political winds.