The result of such a ruling could make agencies such as the MSPB, EEOC and FLRA more partisan in nature, but it appears the court wants to at least insulate the Federal Reserve. Image: nuacho/Shutterstock.com
By: FEDweek StaffThe U.S. Supreme Court has heard arguments in a case that could set a major precedent for the future of agencies that set policies and decide disputes for federal employees, while a lower court also addressed that issue.
The case before the high court involves a challenge by Rebecca Kelly Slaughter to her firing from the FTC governing board without explanation despite a law stating that top officials of independent agencies—designed by law to be bipartisan in nature—may be removed only for “inefficiency, neglect of duty, or malfeasance in office.”
The same was done early in the Trump administration to Democratic or Democratic-appointed members of the FLRA, MSPB and EEOC, as well as to the heads of the Office of Special Counsel and the Office of Government Ethics—in the latter cases, less than a year into what were to have been five-year terms.
The OGE and OSC continue to be run under acting leaders appointed by the White House, while the MSPB and EEOC boards each were left without a quorum for a period of months. Those quorums have since been restored with confirmation of Trump nominees, while the FLRA retains a quorum with two members split by party.
Before the high court was whether the law restricting firings of such officials is an unconstitutional limit on a president’s authority to manage the government vs. whether removing that barrier would upset the constitutional balance of power between the executive and legislative branches. During oral arguments, members of the court’s conservative majority asked questions and made statements indicating that they are leaning toward the former view. Questioning from those justices also suggests they are searching for a way to limit the executive’s sway over the Federal Reserve, while granting it unfettered power over other, traditionally independent agencies.
The result of such a ruling could make agencies such as the MSPB, EEOC and FLRA more partisan in nature, affecting their decisions on issues ranging from challenges to firings on performance grounds and allegations of discrimination in workplace decisions.
In an earlier case that had reached the high court involving the fired MSPB member, Cathy Harris, the justices had lifted an injunction against her firing while the case proceeded to a decision in the lower courts. Such a decision now has been reached, with a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upholding her firing along with that of and a member of the NLRB.
In that case, as in the arguments before the high court, a central issue was to what extend the agencies are judicial in nature vs. executive in nature—with a stronger case for shielding top officials from firing for the former case and a weaker one for the latter.
Both of those agencies exercise substantial executive powers and fall under the president’s powers to manage executive agencies, the panel majority wrote, even though they also have roles of a judicial nature. In the case of the MSPB, it cited the agency’s authority to issue rules as to what constitutes a prohibited removal and its powers to issue binding orders on agencies.
The dissenting judge said that the majority’s “acceptance of the government’s maximalist theory of executive power brings us closer to autocracy, harms our nation, and violates the separation of powers.”
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