By LINDSAY WHITEHURST and MICHAEL KUNZELMAN
WASHINGTON (AP) — Two board members fired by President Donald Trump can go back to their jobs for now, a split appeals court ruled Monday ahead of a likely Supreme Court showdown on the president’s power over independent agencies.
An appeals court in the nation’s capital handed down the 7-4 decision in lawsuits brought by two women separately fired from agencies that both deal with labor issues, including one with a key role for a federal workforce Trump is aiming to drastically downsize.
The order relies largely on a 90-year-old Supreme Court decision known as Humphrey’s Executor, which found that presidents can’t fire independent board members without cause.
But that ruling has long rankled conservative legal theorists who argue it wrongly curtails the president’s power, and experts say the current conservative majority on the Supreme Court may be poised to overturn it.
“The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it,” the majority wrote in an unsigned opinion. All 7 members of the majority were appointed by Democratic presidents. The four dissenters are Republican appointees, including three named by Trump in his first term.
The vote was closer, 6-5, over whether to pause the decision for a week to let the Trump administration appeal to the Supreme Court right away.
The ruling isn’t a final decision on the legal merits of the case, but it does reverse a judgment from a three-judge panel from the same U.S. Court of Appeals for the District of Columbia Circuit that had allowed the firings to go forward.
Former President Joe Biden nominated both of the fired board members. Cathy Harris is from the Merit Systems Protection Board, which reviews disputes from federal workers and could be a significant stumbling block as the Trump administration seeks to carry out a dramatic downsizing of the workforce.
Gwynne Wilcox, meanwhile, has served on the National Labor Relations Board, which resolves hundreds of unfair labor practice cases every year. The five-member board lacked a quorum after Wilcox’s removal.
Government lawyers have argued that Trump can remove both board members. In Wilcox’s case, they said reinstatement “works a grave harm to the separation of powers and undermines the President’s ability to exercise his authority under the Constitution.”
They also argued that MSPB members like Harris are removable “at will” by the president.
Wilcox’s attorneys said Trump couldn’t fire her without notice, a hearing or identifying any “neglect of duty or malfeasance in office” on her part. They argued that the administration’s “only path to victory” is to persuade the U.S. Supreme Court to “adopt a more expansive view of presidential power.”
Wilcox was the first Black woman to serve on the five-member board in its 90-year history. The Senate confirmed Wilcox for a second five-year term in September 2023.
Associated Press writer Mark Sherman contributed to this story.
