Appeals court upholds firing of Democratic Merit Systems Protection Board member

President Donald Trump’s firings of Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox are lawful, the U.S. Court of Appeals for the District of Columbia decided on Friday. 

The ruling will not have any immediate impact, as the Supreme Court in May allowed the removals of the Democratic board members to take effect while their cases are being considered. The decision does, however, portend the possible end of independent agencies. 

Such agencies are generally considered to be boards and commissions with multiple members from both parties. 

The MSPB — which is led by a three-person board, no more than two of whom can be from the same political party — is a quasi-judicial agency that adjudicates alleged violations of the merit system for federal employees. Likewise, the NLRB is a five-person panel that safeguards private employees’ union rights. 

Harris and Wilcox have argued that their firings are unlawful because members of MSPB and NLRB have statutory protections against removal without cause as well as Humphrey’s Executor, a 1935 Supreme Court decision that found the president doesn’t have unfettered authority to remove officials on quasi-judicial boards. 

Circuit Judges Gregory Katsas and Justin Walker, both of whom were appointed by Trump,  objected to that rationale. 

“Congress may not restrict the president’s ability to remove principal officers who wield substantial executive power,” they argued. “The NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial. So, Congress cannot restrict the president’s ability to remove NLRB or MSPB members.”

In her dissent, Judge Florence Pan, a Biden appointee, countered that their decision could remove the independence that some agencies have had from the White House. 

“Under my colleagues’ reasoning, it appears that no independent agencies may lawfully exist in this country,” she wrote. “Their determination that the MSPB cannot be independent — even though it is purely adjudicatory and does not touch upon core constitutional functions assigned to the president — suggests that no agencies can be independent.”

On Monday, the Supreme Court will hear oral arguments regarding the firing of Rebecca Slaughter, a Democratic commissioner on the Federal Trade Commission, in a case that could provide a resolution to whether Harris and Wilcox will ultimately be reinstated or not. 

Even though Harris hasn’t been serving on the MSPB since the spring, the board has had a quorum since October when a second member, James Woodruff, was confirmed by the Senate.