D.C. Circuit Upholds Presidential Power to Remove NLRB and MSPB Members Without Cause

Quick Hits

• The D.C. Circuit upheld President Trump’s power to remove NLRB member Gwynne Wilcox and MSPB member Cathy Harris without cause.
• The court ruled that statutory “for-cause” removal protections for officials at federal agencies that wield substantial executive power are unconstitutional.
• The decision addresses constitutional questions about the extent of presidential authority over independent agencies, particularly concerning the removal of officers at agencies established by Congress.

In Wilcox v. Trump and Harris v. Bessent, a D.C. Circuit panel majority reversed a district court ruling that had reinstated both Wilcox and Harris, both Democratic appointees, to their respective agencies after President Trump had removed them without citing cause earlier this year. Instead, the D.C. Circuit panel held that statutory “for-cause” removal protections for members of the NLRB and MSPB are unconstitutional.

The ruling comes as the Supreme Court of the United States is considering a similar case, Trump v. Slaughter, concerning President Trump’s removal of Rebecca Slaughter from the Federal Trade Commission (FTC) and whether Humphrey’s Executor v. United States—a 1935 Supreme Court decision upholding restrictions on the president’s authority to remove officers of certain types of independent agencies—should be overruled.

The D.C. Circuit read Humphrey’s Executor narrowly:

“[T]he 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,” the D.C. Circuit majority wrote. “So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.”

‘Substantial Executive Power’

The D.C. Circuit panel based its ruling on the Supreme Court’s 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau, which declined to extend Humphrey’s Executor and instead applied the rule under the 1926 Myers v. United States case, which held that Congress could not restrict the president’s ability to remove government officers who wield significant executive power.

The court found that the NLRB, a five-member board created by the National Labor Relations Act (NLRA) that enforces federal labor law through representation and unfair labor practice cases, and the MSPB, a three-member bipartisan board that adjudicates personnel and merit systems issues involving federal employees, exercise powers beyond quasi‑legislative (i.e., investigatory/reporting) and quasi‑judicial (i.e., judge‑like, non‑policymaking adjudication) functions.

Specifically, the panel pointed out that the NLRB wields substantial executive power in ways that distinguish the agency from the FTC as it functioned in 1935, which was at issue in Humphrey’s Executor. The D.C. Circuit pointed out that the NLRB exercises:

• broad rulemaking authority with the power to issue binding rules necessary to carry out the NLRA, including industry-wide rules, such as those defining appropriate bargaining units;
• policymaking authority through administrative adjudications, changing labor policy on a case-by-case basis;
• remedial power to issue cease-and-desist orders and order reinstatement, backpay, and other affirmative relief sometimes akin to compensatory damages;
• independent litigating authority to seek to enforce its orders in federal court; and
• administrative authority to oversee union elections and bargaining units.

The D.C. Circuit panel likewise stated that the MSPB had “more executive powers” than those deemed to be quasi-legislative or quasi-judicial, including substantial rulemaking authority to issue binding regulations necessary to perform its functions and adjudicatory authority—even if “less aggressive than the NLRB in naked appeals to shifting policy preferences.”

Separation of Powers

The Trump v. Slaughter case, as well as Wilcox’s and Harris’s cases regarding their removals, have raised significant constitutional questions about the president’s authority to remove officers of independent, multimember agencies for whom the U.S. Congress imposed statutory “for-cause” removal protections.

Under the NLRA, members of the NLRB may be removed by the president only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” MSPB members are protected from at-will removal absent “inefficiency, neglect of duty, or malfeasance in office.”

The Trump administration has argued that such statutory removal protections violate the separation of powers doctrine by unconstitutionally limiting the president’s executive authority. President Trump’s removal of Wilcox and Harris earlier this year left both the NLRB and MSPB without quorums.

The D.C. Circuit panel’s decision, while falling short of granting the president absolute authority to remove federal agency officers, severely limits for-cause protections for officers at independent agencies. The panel’s majority suggested that the Humphrey’s Executor protection standard survives only for multimember expert bodies that do not wield substantial executive power, or “only agencies with purely advisory functions—like, say, the United States Commission on Civil Rights.”

However, writing in a separate dissenting opinion, D.C. Circuit Judge Florence Y. Pan criticized the panel majority’s decision to “strike down the independence of a traditional multimember expert agency.” She stated that the Trump administration’s position urged an “unprecedented interpretation of the Constitution that would lead to the full politicization of our government and a massive transfer of power to the President.”

Next Steps

The D.C. Circuit panel’s ruling upholds President Trump’s removal of Wilcox and Harris from their respective appointed positions at the NLRB and MSPB, but the litigation could continue. Harris has already petitioned for en banc review by the full D.C. Circuit Court of Appeals. Still, the likelihood of either Harris or Wilcox being reinstated is at best unclear. While the D.C. Circuit sitting en banc ruled in their favor earlier in the litigation, the Supreme Court later blocked their reinstatement. In that ruling, which was on an emergency basis and not on the merits, a majority of the justices agreed that the Trump administration had likely shown that members of the NLRB and MSPB “exercise considerable executive power.”

The Supreme Court’s forthcoming ruling in the Slaughter case could also have a significant influence. A decision overturning Humphrey’s Executor and holding that restrictions on the president’s power to remove officers of independent agencies that wield executive power are unconstitutional would support the D.C. Circuit panel’s ruling in the Wilcox and Harris case.

Furthermore, questions remain about the practical implications of reinstating members to agency boards after they have been out of the agency for months, and whether this would impact the legitimacy of actions taken by the agencies in their absence. In the meantime, President Trump’s two NLRB nominees, whose appointments would restore a Board quorum, are nearing confirmation by the full U.S. Senate.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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