A federal appeals court ruled Friday that presidents do have the power to fire members of so-called independent agencies if those panels wield substantial executive authority, in a decision that confirms some of President Trump’s high-profile firings.
The U.S. Circuit Court of Appeals for the District of Columbia, in a 2-1 decision, said Mr. Trump was on firm legal ground in firing members of the Merit Systems Protection Board and the National Labor Relations Board.
When Congress created those bodies, it wrote protections into the law preventing members from being fired except for good cause. That would mean political differences wouldn’t suffice.
But the appeals court on Friday said those laws clash with the Constitution, which gives the president firm control over any situation where the government exercises executive authority.
“Congress may not restrict the president’s ability to remove principal officers who wield substantial executive power,” wrote Judge Gregory Katsas, a Trump appointee, in the majority opinion. “So, Congress cannot restrict the president’s ability to remove NLRB or MSPB members.”
Judge Florence Pan, a Biden pick, dissented, saying independent agencies need to remain independent.
“Under my colleagues’ reasoning, it appears that no independent agencies may lawfully exist in this country,” she wrote.
She said the court is bound by a 1935 Supreme Court case, known as Humphrey’s Executor, which ruled that President Franklin Roosevelt could not fire a member of the Federal Trade Commission.
She said the MSBP and NLRB look similar to the FTC.
Judge Katsas disagreed. He said the MSPB and NLRB wield more executive power than the FTC, so there’s reason to treat them differently.
The full D.C. Circuit quickly issued an order withholding issuance of the mandate in the case, effectively freezing the ruling. That indicates an interest on the part of some of the other judges on the full court to review — and perhaps overturn — the three-judge panel’s decision.
The entire issue could soon become moot.
The Supreme Court will hear oral argument on Monday in a case involving Mr. Trump’s firing of an FTC member. Legal analysts say the justices could overturn the Humphrey’s Executor ruling or trim it down to the point that it would confirm a president’s broad firing power.
Mr. Trump’s firing spree has been one of the defining features of his first year in office.
He’s booted members of independent agencies, inspectors general, top military brass, immigration judges, federal prosecutors, the Librarian of Congress and a member of the Federal Reserve Board of Governors.
That last firing is different in that Mr. Trump cited cause in ousting Lisa Cook as a member of the Federal Reserve Board.
That case is also slated for oral argument before the justices later this term.
The high court has let Ms. Cook keep serving while her case develops.
But it has allowed Mr. Trump to fire the MSPB, NLRB, FTC and other independent agency heads while their cases proceed.
