The Volokh Conspiracy
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D.C. Circuit Upholds Presidential Removal of MSPB and NLRB Members
On the eve of Trump v. Slaughter, the D.C. Circuit offers a way to distinguish Humphrey's Executor.
On Monday, the Supreme Court will hear oral argument in Trump v. Slaughter, the case challenging limitations on the President's ability to remove members of the Federal Trade Commission. In resolving this question, the Court will consider whether to narrow or overrule Humphrey's Executor.
Perhaps to aid in the Court's deliberations, today the U.S. Court of Appeals for the D.C. Circuit decided the combined cases of Harris v. Bessent and Wilcox v. Trump, concerning the limitations on removal of members of the Merit System Protection Board and National Labor Relations Board.
In Harris, a divided panel concluded that the President could remove members of both the MSPB and NLRB on the grounds that both entities exercise executive power and that limitations on removal in such contexts is contrary to the Supreme Court's decision in Seila Law v. CFPB. In this way, the panel sought to distinguish this case from Humphrey's Executor, which concerned an FTC that, at the time, exercised quasi-legislative and quasi-judicial power, as opposed to core executive power. In the process the panel also provided the Court a potential roadmap for upholding President Trump's removal of Slaughter from the FTC without formally over-ruling Humphrey's Executor (and perhaps, in the process, giving a nod to revisionist scholarship suggesting that limits on removal in the context of officers exercising quasi-judicial is consistent with history and tradition).
Judge Katsas wrote the opinion for the panel, joined by Judge Walker. Judge Pan dissented.
Judge Katsas summarizes the case as follows:
These appeals present the question whether Congress may constitutionally prohibit the President from removing members of the National Labor Relations Board and Merit Systems Protection Board without cause. The district courts upheld the constitutionality of statutory removal protections for members of these boards.
We reverse. Under Humphrey's Executor v. United States, 295 U.S. 602 (1935), Congress may restrict the President's ability to remove principal officers who wield only quasi-legislative or quasi-judicial powers. But under Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), Congress may not restrict the President's ability to remove principal officers who wield substantial executive power. As explained below, 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
And from later in the opinion:
The constitutional problem in these cases arises from two features of each agency: (1) the agency has been vested with significant executive power that cannot be characterized as quasi-legislative or quasi-judicial, and (2) Congress has restricted the President's ability to remove its members. Wilcox and Harris urge us to solve the constitutional problem by stripping away agency powers, rather than by declining to enforce the removal restrictions.
We reject that proposal. When the Supreme Court encounters a statute that unconstitutionally insulates an executive officer from at-will removal, it has typically responded by disregarding the removal restriction. See Myers, 272 U.S. at 176; Free Enter. Fund, 561 U.S. at 508–10; Seila Law, 591 U.S. at 232–38. Our Circuit has done likewise. Dellinger v. Bessent, No. 25-5052, 2025 WL 717383, at *1 (D.C. Cir. Mar. 5, 2025) (per curiam). Following that wellworn path, we hold that the appropriate resolution here is to disregard the statutory removal restrictions for NLRB and MSPB members, not to blue-pencil provisions from among the full panoply of the executive powers of each agency.
The panel opinion notes that it is not deciding whether the President's unrestricted power of removal also applies to purely adjudicatory or quasi-adjudicatory bodies or to the Federal Reserve.
Judge Pan's dissent objects to the majority's conclusion, as well as its treatment of precedent. It concludes:
Throughout our history, the Supreme Court's precedents and our nation's practice and tradition have allowed independent multimember expert agencies to operate successfully within our constitutional system; and as a result, we have reaped the benefits of a workable government that best serves the interests of the American people. The government now urges an extreme view of Article II's Vesting Clause, torn from context: It attempts to reduce the actual art of governing to an uncompromising usurpation of power by the President, all in defiance of Congress's authority and without regard for the public good. My colleagues' substantial acceptance of the government's maximalist theory of executive power brings us closer to autocracy, harms our nation, and violates the separation of powers. I respectfully dissent.
A final little note. Given the composition of the D.C. Circuit, this case would be a good candidate for rehearing (and reversal) en banc. But given that the ultimate outcome here will almost certainly be controlled by what the Supreme Court does in Slaughter, it will be interesting to see whether the other judges on D.C. Circuit believe granting a petition for rehearing en banc is worth the effort, particularly given the fact that the Supreme Court has already indicated that it is likely to allow Trump to remove Harris and Wilcox.
