President Secures Authority To Remove NLRB, MSPB Members

Checklist: explain the cases and procedural history; describe the D.C. Circuit’s ruling and legal reasoning; note likely next steps including rehearing and possible Supreme Court review; maintain key quotes, case names, and factual details.

The D.C. Circuit handed a significant win to the Trump administration in the companion appeals Harris v. Bessent and Wilcox v. Trump, reversing earlier district court rulings that had found certain statutory removal protections constitutional. The appeals involved two high-profile removals: Gwynne Wilcox from the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. The circuit’s 2-1 decision concluded that Congress cannot cabin the president’s power to remove members of those agencies, a conclusion that leans on recent Supreme Court precedent. That ruling shifts the fight over the administrative state back toward broad presidential authority.

These cases traveled a tangled path before the D.C. Circuit issued its decision. Wilcox sued after being removed as Acting Chair of the NLRB, and Judge Beryl Howell granted summary judgment for Wilcox at the district level. The D.C. Circuit initially stayed that judgment pending appeal, then granted a rehearing en banc motion that effectively reinstated Wilcox for a time. The administration took the unusual step of seeking a stay from the Supreme Court, which the high court granted, and the appellate process continued.

The Harris case tracked a similar procedural arc. Cathy Harris challenged her removal from the MSPB and won summary judgment from Judge Rudolph Contreras in district court. Both matters were consolidated on appeal, so once the D.C. Circuit moved on Wilcox it handled Harris in lockstep. The consolidation meant the precedent the panel announced would apply to both agencies and to both plaintiffs, tightening the stakes for how far Congress may insulate independent agency officials from presidential removal.

In the 2-1 panel decision, Judges Gregory Katsas and Justin Walker concluded that the statutory “for cause” removal protections for NLRB and MSPB members cannot stand. Judge Florence Pan dissented. The majority treated the question through the lens of two key precedents, drawing a line between officers who exercise only quasi-legislative or quasi-judicial functions and those who wield substantial executive power. That line proved decisive for the panel majority.

Under Humphrey’s Executor v. United States, 295 U.S. 602 (1935), Congress may restrict the President’s ability to remove principal officers who wield only quasi-legislative or quasi-judicial powers. But under Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power. As explained below, the NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial. So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.

The majority analyzed the agencies’ authorities and concluded they are sufficiently executive in character that Humphrey’s Executor does not protect them from presidential removal. That echoes a recent trend on the federal bench and in the Supreme Court to read removal protections narrowly. From a conservative perspective, this reasserts the president’s role in ensuring the faithful execution of the laws by selecting accountable leaders at agencies that wield significant governmental power.

What this ruling does not do is close the litigation. Expect both Wilcox and Harris to seek rehearing en banc, especially given the D.C. Circuit’s earlier willingness to rehear. If the full court denies rehearing, or if rehearing fails, the plaintiffs could push the cases back to the Supreme Court. Given the overlap with other separation-of-powers cases bubbling through the federal courts, these removal disputes could ultimately end up at the high court again.

Practically speaking, the decision puts federal workers and agency operations on notice: presidential removal authority may extend further than some district courts have held. That could affect how administrations staff independent agencies and how Congress drafts statutory protections for agency officials in the future. For Republicans and conservatives who favor a stronger unitary executive, the ruling validates a posture that emphasizes accountability and direct presidential control over powerful agencies.

Strategically, the administration’s legal team and conservative litigators will likely press to solidify this reasoning beyond the panel level. Opponents will push back, arguing that independent agencies must maintain insulation to protect impartial enforcement and adjudication. The coming procedural skirmishes will test which view prevails across an entire circuit and possibly before the Supreme Court.

For now, the D.C. Circuit’s opinion marks a clear, panel-level victory for the president: two appellate judges found that Congress may not impose for-cause removal limits on NLRB and MSPB members given the scope of those agencies’ executive powers. The cases continue, but the ruling shifts momentum to the position that presidents must be able to remove officials who exercise substantial executive authority.