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District Court Declines to Stay Order Reinstating Fired U.S. Institute of Peace Board Members, Holds Trump v. Wilcox Doesn't Apply
From today's order by Judge Beryl Howell (D.D.C.) in U.S. Institute for Peace v. Jackson:
[On Monday, t]his Court declared that President Trump's termination of USIP Board members violated the statutory removal protections in 22 U.S.C. § 4605(f), and because those protections posed no constitutional problem, the terminations were null and void. This Court also declared null and void actions taken as a result of those improper removals, including the removal and replacement of USIP President Ambassador Moose, as well as the transfer of property and other actions taken by those illegitimately installed replacements. This Court then ordered that plaintiff Board members and Ambassador Moose remain in their leadership positions for USIP and may not be treated as having been removed, among other concomitant relief.
Defendants sought a stay of this order while it's being appealed, but the court said no:
Whether a stay is appropriate depends on four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." "The first two factors of the traditional standard are the most critical," and the showing of likelihood of success must be "substantial."
For all of the reasons explained in this Court's Memorandum Opinion, defendants have not made the requisite showing that they are likely to succeed on the merits. President Trump removed the USIP Board members without complying with the statutory requirements in 22 U.S.C. § 4605(f). Defendants did not argue that the President met those requirements but rather challenged the constitutionality of the statutory removal restrictions, arguing that USIP is part of the Executive branch and its Board members are subject to at-will presidential removal under Article II of the Constitution.
As the Court explained, however, while USIP may be considered part of the federal government, USIP does not exercise executive power and thus is not part of the Executive branch, so the President does not have absolute constitutional removal authority over USIP Board members but must comply with the statute in exercising his removal power. Further, even if USIP were part of the Executive branch, Congress's restrictions on the President's exercise of constitutional removal authority in 22 U.S.C. § 4605(f) would be permissible under Humphrey's Executor v. United States (1935), and its progeny, given USIP's Board's multimember structure and de minimis, if any, exercise of executive power. Thus, whether USIP is or is not part of the Executive branch, the President must comply with the various mechanisms at his disposal, as provided in the statute to remove members of USIP's Board.
Contrary to defendants' suggestion, the Supreme Court's recent stay in Trump v. Wilcox has no bearing here. The Supreme Court there opined that the National Labor Relations Board ("NLRB") and Merit Systems Protection Board ("MSPB") "exercise considerable executive power" and thus invoked concerns about the President's Article II removal power. As explained in the Memorandum Opinion, USIP exercises considerably less executive power than such agencies. USIP is rather a "uniquely structured, quasi- private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,"—the kind the Supreme Court explicitly noted are not "implicate[d]" by its stay decision.
Defendants insist that the Court erred in concluding that USIP could be part of the government while not falling within one of the three branches. Defendants' cited authorities do not, however, hold that every entity must fall squarely within one of the three branches, and as the Court has previously pointed out, other entities also fall outside of this tripartite structure.
Refraining from classifying USIP as squarely within a particular branch does not make it "unanswerable to the electorate or the Judiciary," as defendants contend. To the contrary, the Institute is highly responsive to both Congress and the Executive branch through numerous oversight mechanisms (including mandatory biennial reporting to both branches), control of appropriations on which the organization is largely dependent, the President's ability to appoint all voting Board members (including two that are part of his Cabinet), and the President's broad—though not limitless—removal authority.
Moreover, defendants' argument that USIP exercises "core executive powers" because the Institute "promot[es] peace and alternatives to war, including by distributing directly appropriated funds to private entities" and "travel[s] to foreign countries and attempt[s] to negotiate peace" is both legally and factually wrong. Those activities are not, as defendants suppose, inherently executive just because they involve foreign relations. As the Court explained, NGOs regularly engage in similar activities. What matters is whether the entity is doing so under the auspices of the President of the United States. USIP neither represents nor acts on behalf of the Executive branch, and instead operates abroad as an independent think tank.
Further, defendants misrepresent the activities USIP undertakes abroad. USIP is a scholarly, research-oriented, educational institution or "think tank." While its focus on peace leads USIP to deliver workshops, conduct field research, and facilitate discussions on the subject of resolving conflicts, the Institute in no way occupies the same role as the Executive branch in formally negotiating foreign agreements. Defendants' overly generic view of Executive power is perhaps convenient, one conducive to aggrandizing presidential authority, but this Court must take a more scrutinizing approach to the nature of executive power under the Constitution and the character of the authority USIP wields.
Defendants next argue that the Court's issuance of injunctive relief was improper but cite only dissenting opinions in support of that point. The questions before this Court were indeed "novel," but novelty is no substitute for failure to demonstrate likelihood of success on the merits. Indeed, defendants' failure to show likelihood of success is "an arguably fatal flaw for a stay application," but regardless, defendants also fail to satisfy the other factors. Defendants do not describe any cognizable harm they will experience without a stay, let alone an irreparable one.
Defendants point to the Wilcox Stay Order to suggest that the government faces a "risk of harm from an order allowing a removed officer" to remain. Yet, the Supreme Court specified that the risk of harm was that of allowing a removed officer to "continue exercising the executive power." Such a risk is not present in this case because, again, the Institute's Board members do not exercise any meaningful executive power under our Constitution. Plaintiffs and the public, on the other hand, experience harm every day that plaintiffs are not able to carry out their statutory tasks and operate USIP with independence and expertise. Cf. New Motor Vehicle Bd. v. Orrin W. Fox. Co. (1977) (Rehnquist, J., in chambers) (describing irreparable harm to the government that occurs "any time" it is unable to "effectuat[e] statutes enacted by representatives of its people"). As plaintiffs explain, every day that goes by without the relief this Court ordered, "the job of putting [USIP] back together by rehiring employees and stemming the dissipation of USIP's goodwill and reputation for independence will become that much harder."
In the alternative, defendants have requested a "two-business-day administrative stay to allow defendants to seek a stay from the D.C. Circuit." Defendants do not provide any separate rationale to warrant such an administrative stay, and none is apparent in light of the equities and public interest just discussed.
