The Supreme Court on Thursday granted the Trump administration’s request to temporarily allow the removal of two members from federal independent labor boards, Gwynne Wilcox of the National Labor Relations Board (NLRB) and Cathy Harris of the Merit Systems Protection Board (MSPB), while legal challenges to their dismissals proceed in lower courts.
The high court’s decision puts on hold rulings from lower courts that had invalidated President Trump’s actions in removing Wilcox and Harris. In its statement, the Supreme Court referenced the President’s executive power under the Constitution, stating that the President may remove executive officers who exercise power on their behalf without cause, subject to specific exceptions based on precedent. The court noted its assessment that the government is likely to demonstrate that both the NLRB and MSPB wield significant executive authority. However, the court clarified that this order does not represent a final determination on whether these boards fall under a recognized exception to the President’s removal power, suggesting that this complex legal question will be addressed more fully after comprehensive briefing and arguments.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson issued dissenting opinions on the court’s decision. Justice Kagan, in her dissent, highlighted the unusual nature of the President’s actions, stating that it is unprecedented in recent history for a President to attempt to remove officers from established independent agencies – defined as multi-member, bipartisan commissions with regulatory power whose governing statutes include “for-cause” removal provisions – without legitimate justification. She further noted that the President had discharged several such officers, including Wilcox and Harris, without asserting cause, and that the court’s order effectively endorsed these actions, a stance she opposed.
Previously, Chief Justice John Roberts had issued a temporary halt to the lower court decisions to provide the Supreme Court with additional time to consider the Trump administration’s emergency appeal. The full court’s order signifies that Wilcox and Harris will remain out of their positions while the legal challenges to their firings continue to be litigated.
The employment status of Wilcox and Harris has been in flux since the Trump administration initially informed them of their removal earlier this year. Wilcox was appointed to the NLRB by former President Joe Biden and was confirmed for a second five-year term in 2023. Harris was also appointed by Biden to the MSPB in 2022 for a seven-year term.
Both officials initiated lawsuits against the Trump administration, arguing that their terminations violated “for-cause” removal laws that limit the President’s authority to dismiss them. Federal judges in separate cases in Washington, D.C., sided with Wilcox and Harris, voiding their firings and ruling that they could remain in their roles pending the outcome of the litigation.
However, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit temporarily suspended these decisions, allowing the President to terminate Harris and Wilcox. Subsequently, the full D.C. Circuit reviewed the cases and, in a 7-4 decision, reinstated the district court rulings, meaning Harris and Wilcox could return to their positions while their challenges progressed.
The Trump administration then appealed to the Supreme Court, seeking to once again permit the President to remove Wilcox and Harris. Solicitor General D. John Sauer, in the emergency relief request, contended that the Constitution grants the President broad authority to remove members of multi-member boards that exercise “substantial executive power,” such as the NLRB and MSPB. Sauer argued that the President should not be compelled to delegate executive power to agency heads whose policy objectives are demonstrably contrary to the administration’s, even for a brief period, given the likely protracted nature of the legal proceedings. He further asserted that a court ordering the reinstatement of a removed executive officer infringes upon Article II of the Constitution.
Sauer also maintained that the NLRB and MSPB do not fall under the exception to the President’s removal power that was established by the Supreme Court in the 1935 case of Humphrey’s Executor v. United States. In that precedent-setting case, the high court determined that Congress could impose “for-cause” removal protections for multi-member commissions composed of experts, balanced along partisan lines, and not exercising executive functions.
While the Trump administration did not ask the Supreme Court to overturn the Humphrey’s Executor decision, it suggested that the court could consider whether the “for-cause” removal restrictions applicable to NLRB and MSPB members constitute a violation of the separation of powers.
Conversely, lawyers representing Harris and Wilcox cautioned that the administration’s request to the Supreme Court could potentially invalidate the established structure of numerous independent agencies, thereby jeopardizing the independence of entities such as the Federal Reserve Board, the National Transportation Safety Board, and the Nuclear Regulatory Commission. Notably, President Trump had previously indicated a desire to remove Federal Reserve Chairman Jerome Powell, an appointee from his first term, expressing his impatience for such an action on social media in April. However, the President later retracted this suggestion, stating that he had “no intention” of removing the Fed chief.
Neal Katyal, who served as acting solicitor general during the Obama administration and is representing Harris, argued in a filing with the Supreme Court that the President is simply being asked to adhere to established precedent, consistent with the actions of his predecessors over the past 90 years. Katyal stated that the government’s assertion of irreparable harm to the President if he cannot remove Harris is unfounded, noting that no other President in recent history has attempted to violate “for-cause” removal statutes in this manner, and that the current chief executive is not being held to a different standard. Katyal also argued that the MSPB meets the criteria for the exception outlined in the Supreme Court’s 1935 decision. “The board is the easy case,” he asserted. “If the board’s structure is not constitutional under Humphrey’s Executor, nothing is.”
In a separate filing, Deepak Gupta, a lawyer representing Wilcox, emphasized that the statute governing the removal of NLRB members has been in effect for nearly a century, and no prior presidential administration has sought to remove a board member. Gupta contested the Trump administration’s claim of urgent need for emergency relief, arguing that granting such relief would require the Supreme Court to overturn decades of established practice and signal the overruling of significant precedents that have fostered strong reliance interests, all before the court has had the opportunity for a full reconsideration of its longstanding jurisprudence.
Beyond the specific seats on the NLRB and MSPB at issue, vacancies remain at both agencies that President Trump has the authority to fill. However, lawyers for Wilcox and Harris have argued that the President’s actions have impaired the boards’ functioning and impeded their ability to adjudicate labor and employment disputes effectively. Gupta stated that “by depriving the board of the quorum it needs to carry out its appellate decision making, the president’s illegal removal causes immediate harm to the workers, employers, and broader public who depend on it.”
Since commencing his second term, President Trump has initiated a substantial reshaping of the executive branch, including the removal of high-ranking officials leading numerous independent agencies and institutions, as well as the dismissal of independent agency watchdogs. His administration is also actively pursuing the dismantling of other federal entities and programs, leading to a series of legal challenges.
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