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D.C. Circuit Decision Holding That MSPB Members Are Subject to At-Will Removal May Impact OSHRC
The U.S. Court of Appeals for the District of Columbia Circuit’s recent consolidated decision in Harris v. Bessent and Wilcox v. Trump, holding that members of the Merit Systems Protection Board (MSPB) and National Labor Relations Board (NLRB) are not insulated by statutory for-cause removal protections, marks a significant turning point in modern federal jurisprudence under Article II of the United States Constitution.
The court treated at-will presidential removal as the constitutional baseline and read Humphrey’s Executor, a ninety-year-old precedent of the Supreme Court of the United States, as a narrow exception for entities that do not exercise “substantial executive power.” In the court’s view, the MSPB’s adjudicatory power to issue final, binding decisions with concrete legal consequences placed it outside Humphrey’s Executor’s core and squarely within executive power, where accountability to the president must be direct.
The court treated at-will presidential removal as the constitutional baseline and read Humphrey’s Executor, a ninety-year-old precedent of the Supreme Court of the United States, as a narrow exception for entities that do not exercise “substantial executive power.” In the court’s view, the MSPB’s adjudicatory power to issue final, binding decisions with concrete legal consequences placed it outside Humphrey’s Executor’s core and squarely within executive power, where accountability to the president must be direct.
