WASHINGTON — Two board members fired by President Donald Trump can go back to their jobs, a split appeals court ruled Monday ahead of a likely Supreme Court showdown on the president’s power over independent agencies.
An appeals court in the nation’s capital handed down the 7-4 decision in lawsuits brought by two women separately fired from agencies that both deal with labor issues, including one with a key role for a federal workforce Trump is aiming to drastically downsize.
The order relies largely on a 90-year-old Supreme Court decision known as Humphrey’s Executor, which found that presidents can’t fire independent board members without cause.
But the ruling has long rankled conservative legal theorists who argue it wrongly curtails the president’s power, and experts say the current conservative majority on the Supreme Court may be poised to overturn it.
The ruling reverses, at least for now, a judgment from a three-judge panel from the same U.S. Court of Appeals for the District of Columbia Circuit.
Former President Joe Biden nominated both of the fired board members. Cathy Harris is from the Merit Systems Protection Board, which reviews disputes from federal workers and could be a stumbling block as the Trump administration seeks to carry out a dramatic downsizing.
Gwynne Wilcox has served on the National Labor Relations Board, which resolves hundreds of unfair labor practice cases every year. The five-member board lacked a quorum after Wilcox’s removal.
Government lawyers have argued that Trump can remove both board members. In Wilcox’s case, they said reinstatement “works a grave harm to the separation of powers and undermines the President’s ability to exercise his authority under the Constitution.”
They also argued that MSPB members like Harris are removable “at will” by the president.
Wilcox’s attorneys said Trump couldn’t fire her without notice, a hearing or identifying any “neglect of duty or malfeasance in office” on her part. They argued that the administration’s “only path to victory” is to persuade the U.S. Supreme Court to “adopt a more expansive view of presidential power.”
Wilcox was the first Black woman to serve on the five-member board in its 90-year history. The Senate confirmed Wilcox for a second five-year term in September 2023.
Congress created the board in 1935. Its primary purpose is to resolve disputes over unfair labor practices. It adjudicated hundreds of cases in the last fiscal year.