The U.S. Supreme Court on May 22 stayed the reinstatement of Gwynne Wilcox, a former member of the National Labor Relations Board, and Cathy Harris, a former member of the Merit Systems Protection Board. Both women were terminated by President Trump not long after he took office, and both have been challenging their terminations in court.
On March 6, U.S. District Court Judge Beryl Howell, an Obama appointee, enjoined the Administration from terminating Ms. Wilcox or preventing her from serving as a Member of the NLRB. The Administration appealed and requested an emergency stay pending appeal. On March 28, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit by a 2 to 1 decision stayed Judge Howell’s order. The two judges who voted for the stay were appointed by Republican Presidents (George H.W. Bush and Trump), and the dissenter was an Obama appointee. Ms. Wilcox asked to have the motion for stay heard by all of the judges on the D.C. Circuit, and her case was consolidated with that of Ms. Harris of the MSPB. On April 7, the full D.C. Circuit ruled 7-4 in favor of Ms. Wilcox and Ms. Harris, meaning that they would be reinstated to their positions. Again, the vote was split along party lines. The seven judges in favor were Democratic appointees, and the four judges opposed were Republican appointees – including the two judges who had ruled in favor of the Administration on March 28.
Then, on April 9, Chief Justice John Roberts of the Supreme Court stayed the decision of the full D.C. Circuit, meaning that Ms. Wilcox and Ms. Harris were again off their respective Boards. And last Thursday, May 22, the Supreme Court voted 6-3 to reverse the decision of the full D.C. Circuit, meaning that Ms. Wilcox and Ms. Harris are removed from their positions until the merits of their cases are heard.
We have written about the lower court decisions here, here, and here.
As with the lower court decisions, the Supreme Court divided along party lines: Chief Justice Roberts, and Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch,
Brett Kavanaugh, and Clarence Thomas made up the majority, and Justices Ketanji Jackson, Elena Kagan, and Sonia Sotomayor dissented.
According to the majority opinion, “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” The Administration had argued that, if the terminations were ultimately found to be invalid, Ms. Wilcox and Ms. Harris could be made whole with monetary awards. In contrast, according to the Administration, leaving Ms. Wilcox and Ms. Harris in their positions could result in invalid decision-making that would be hard to remedy.
More potentially significant, the majority noted that when it comes time to rule on whether the terminations were in fact lawful, the “Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” If the NLRB or the MSPB “exercise considerable executive power,” that could render inapplicable the 1935 decision in Humphrey’s Executor, which was a key basis for the District Court and full D.C. Circuit orders.
In Humphrey’s Executor, the Supreme Court generally held that Congress could, without violating Article II of the Constitution, enact ”for cause” removal protections for government officials on multi-member boards and heads of independent agencies, as long as the agencies served only adjudicatory or legislative functions and did not exercise executive power. But Humphrey’s Executor has been narrowed by more recent Supreme Court decisions finding that the President has authority to terminate certain officials at will, and that attempts by Congress to restrict the President in such cases to termination “for cause” violates separation of powers under Article II of the U.S. Constitution. The Trump Administration is arguing that these more recent decisions should control. In the alternative, the Administration argues that Humphrey’s Executor no longer fits the reality of the current “administrative state” and should be overruled.
Ms. Wilcox and Ms. Harris argued that accepting the Trump position would mean “for-cause” protections even for members of the Board of Governors of the Federal Reserve would be unconstitutional, but the Court majority disagreed. It noted that the Federal Reserve “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
Justice Kagan, who wrote the dissent, called the majority decision “nothing short of extraordinary,” and asserted that Humphrey’s Executor controlled and that the Court should not have stayed the orders reinstating Ms. Wilcox and Ms. Harris until there was a final decision on the merits of the termination challenges. By doing so at this early stage, Justice Kagan said, the majority “allow[ed] the President to overrule Humphrey’s by fiat . . ..”
This legal saga still has a long way to go, and it is almost certain to again work its way up to the Supreme Court. But the ultimate outcome is not likely to change – in other words, the Supreme Court majority is likely to find again that the NLRB and the MSPB do exercise substantial amounts of executive power and thus fall outside the exception of Humphrey’s Executor. Other cases involving terminations of several officials at agencies, including the Federal Trade Commission and the Federal Communications Commission, are also in the wings.
