Howell previously said the case seemed to go beyond his purview, stating, “I realize for both sides this court is merely a speedbump to get to the Supreme Court.”
Concurring opinions by D.C. Circuit Court judges Justin R. Walker and Karen LeCraft Henderson noted the Supreme Court’s precedent that Congress cannot restrict the president’s removal authority over agencies that “wield substantial executive power” weighed heavily in the case.
The NLRB and MSPB are executive branch agencies.
A dissenting opinion by D.C. Circuit Court Judge Patricia A. Millett claimed the two opinions granting the stay “rewrite controlling Supreme Court precedent and ignore the binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits.”
The stay decision also marks the first time in history a court of appeals or the Supreme Court allowed the firing of members of multi-member adjudicatory boards “statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld,” Millet said.
She called the idea of making a decision Friday “striking,” claiming the decision will leave “hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities.”
Millet added the majority decisions’ rationale “openly calls into question the constitutionality of dozens of federal statutes conditioning the removal of officials on multi-member decision-making bodies — everything from the Federal Reserve Board and the Nuclear Regulatory Commission to the National Transportation Safety Board and the Court of Appeals for Veterans Claims.”
“That would be an extraordinary decision for a lower federal court to make under any circumstances,” she wrote in the dissenting opinion. “I cannot join a decision that uses a hurried and preliminary first-look ruling by this court 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.”
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