A federal appeals court in Washington, D.C., ruled 2-1 Friday that President Donald Trump can remove commissioners from the National Labor Relations Board and the Merit Systems Protection Board.
The two commissioners the Trump administration seeks to oust — Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB — were appointed by former President Joe Biden.
The ruling affords Trump greater control over independent regulatory agencies.
“The Government has also shown that it will suffer irreparable harm each day the President is deprived of the ability to control the executive branch,” Judge Justin Walker, a Trump appointee, wrote in the ruling. “The people elected the President to enforce the nation’s laws, and a stay serves that purpose by allowing the people’s chosen officer to control the executive branch.”
While Walker felt strongly about Trump’s ability to control the agencies’ membership, Judge Karen Henderson — appointed by former President George H.W. Bush — agreed to a lesser extent.
“I agree with many of the general principles in Judge Walker’s opinion about the contours of presidential power under Article 2 of the Constitution, although I view the government’s likelihood of success on the merits as a slightly closer call,” Henderson said.
The Trump administration will likely use the ruling, which applies to the NLRB and MSPB, as a legal precedent to justify removing members of other agencies, such as the FTC.
The one judge who dissented, Judge Patricia Millett, believes the lower court’s ruling should be left in place.
“That decision will leave languishing hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities,” Millett, an appointee of former President Barack Obama, wrote. “I cannot join a decision … to announce a revolution in the law that the Supreme Court has expressly avoided, and to trap in legal limbo millions of employees and employers whom the law says must go to these boards for the resolution of their employment disputes.”
TRACKING WHAT DOGE IS DOING ACROSS THE FEDERAL GOVERNMENT
The Trump administration has gone to lengths to fire members of independent agencies, including Democratic Federal Election Commission chairwoman Ellen Weintraub.
With the decision Friday, Trump’s power to control the membership of such agencies grows.