After being fired on Feb. 10, Harris sued the Trump administration and won her job back through a temporary restraining order and a subsequent permanent injunction, both of which were issued by U.S. District Judge Rudolph Contreras. The government appealed and the three-judge panel voted to stay Contreras’ injunction, allowing Trump to fire both Harris and National Labor Relations Board (NLRB) member Gwynne Wilcox — who had also won reprieve from a politically-motivated firing at the district court level.
The DOJ argues that Trump has the “inherent constitutional authority” to remove Harris and Wilcox, asserting it is well established that “the President’s removal power is the rule, not the exception.”
The administration further claimed that staying the circuit court’s Friday order would risk placing the parties “in a whipsaw.” According to the DOJ, should the administration ultimately win on the merits, any decisions made with the participation of Harris and Wilcox would be “called into question and potentially voidable.”
The appellate panel’s staying of the district court’s order reinstating Harris is particularly vulnerable to being overturned should it be heard by the en banc court, as it appears to conflict with long-standing legal precedent stemming from the U.S. Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which controls the originating statute that created the MSPB: the Civil Service Reform Act of 1978 (CSRA).
In tandem, the two sources of law have, for decades, been understood to mean that a president can fire a member of an independent agency “only for inefficiency, neglect of duty, or malfeasance in office.” Harris emphatically highlighted that understanding in her request for a stay, accusing the panel of attempting to rewrite Supreme Court precedent by allowing Trump to remove her without cause.
“The panel’s extraordinary order allows the Administration to immediately remove Harris from her position as a neutral arbitrator — something no President has attempted in the modern era — and mars the protection that Congress deemed essential for adjudicators to decide cases without fear or favor,” the filing stated. “The order effectively overturns Humphrey’s Executor and [another decades-old similar case]; defies the Supreme Court’s express instructions in [a recent similar case] that the Humphrey’s Executor framework remains good law; and ‘openly calls into question the constitutionality of dozens of federal statutes conditioning the removal of officials on multimember decision-making bodies.’”
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