A federal appeals panel on Friday halted the reinstatement of two independent agency members fired by President Trump, clearing the path for the president to remove them from their positions.
The court’s emergency stay stops Gwynne Wilcox, a member of the National Labor Relations Board (NLRB), and Cathy Harris of the Merit Systems Protection Board (MSPB) — both Democratic appointees — from continuing in their posts for now.
A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit heard their cases together after two Obama-appointed federal district judges determined that their firings were unlawful.
The appeals panel ruled 2-1 to grant the Trump administration’s emergency motions for a stay in the lower judges’ decisions, with each judge expressing their reasoning in an opinion.
Judge Justin Walker, an appointee of President Trump, wrote in a concurring opinion that the Constitution’s framers vested in the president “full responsibility for the executive power.”
“Executive branch agencies do not disrupt that design when they are accountable to the President,” Walker said, suggesting that the administration is likely to succeed in proving the statutory removal protections for NLRB commissioners and MSPB members unconstitutional.
In a separate concurring opinion, Judge Karen Henderson — an appointee of former President George H.W. Bush — said she agreed with much of Walker’s assessment but found the government’s likelihood of success on the merits to be a “slightly closer call.”
However, Judge Patricia Millett wrote in a sharply worded dissent that her colleagues’ opinions “rewrite” Supreme Court precedent and “ignore” binding rulings of the D.C. Circuit.
She said the decision to stay Wilcox and Harris’s reinstatements “marks the first time in history” a higher court has licensed the firings of multimember adjudicatory board members, who are “statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.”
It also renders the boards inoperable for “as long as the President wants them out of commission,” she said, since they now lack the quorum needed to function.
"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,” Millett wrote.
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