The U.S. Court of Appeals for the D.C. Circuit has granted President Donald Trump’s request to temporarily block two lower court orders requiring him to reinstate the chairs of the Merit Systems Protection Board (MSPB) and National Labor Relations Board (NLRB).
Judge Patricia Millett dissented from the March 28 decision to grant Trump’s requests for emergency relief in the two cases. Both Judge Karen Henderson and Judge Justin Walker issued statements supporting the decision to grant the emergency motions.
Walker said that the administration was likely to succeed in claiming that the statutes limiting the president’s ability to fire those individuals were unconstitutional.
“The people elected the President to enforce the nation’s laws, and a stay serves that purpose by allowing the people’s chosen officer to control the executive branch,” he said.
Former NLRB Chair Gwynne Wilcox and MSPB Chair Cathy Harris had filed separate lawsuits alleging that the administration’s brief emails firing them violated laws conditioning their removal on things like neglect of duty or malfeasance. The administration’s emails identified neither, according to the complaints.
Other lawsuits have been filed against the administration over firings—both those of appointed officials and other employees.
On the same day as the D.C. Circuit Court’s decision, another judge in Washington issued a preliminary injunction requiring that the administration reinstate probationary and term employees to the Consumer Financial Protection Bureau (CFPB).
Two former Federal Trade Commission (FTC) members also filed a lawsuit on March 27, alleging that Trump had unlawfully removed them.
The FTC was at the center of a landmark Supreme Court precedent that could undergo further review by the justices, depending on how they handle the various cases against the administration.
In 1935, the Supreme Court held in Humphrey’s Executor v. United States that President Franklin Delano Roosevelt violated federal law when he fired the commissioner of the FTC. Like the laws in Wilcox’s and Harris’s cases, the law in Humphrey’s Executor allowed presidents to remove commissioners for “inefficiency, neglect of duty, or malfeasance in office.”
In her March 28 dissent, Millett said that the Supreme Court’s decision in Humphrey’s Executor demonstrated that the for-cause removal protections in both Harris’s and Wilcox’s cases were constitutional.
“I cannot join a decision that uses a hurried and preliminary first-look ruling by this court to announce a revolution in the law that the Supreme Court has expressly avoided, and to trap in legal limbo millions of employees and employers whom the law says must go to these boards for the resolution of their employment disputes,” she said.
“The Court fashioned a clear rule for the Humphrey’s exception: It applies only to ‘multimember expert agencies that do not wield substantial executive power,’” Walker wrote, quoting the court’s decision in Seila Law.
