President Trump recently dismissed members of the NLRB, MSPB, FLRA and the FTC - multimember entities where federal law provides that they can be removed by the President only for cause. Image: Paul Brady Photography/Shutterstock.com
By: FEDweek StaffFollowing are the key sections of a Congressional Research Service analysis of the possible implications of pending legal challenges to the Trump administration’s firing of senior officials of independent federal agencies.
Over the first month of his second Administration, President Donald Trump has actively used his constitutionally based removal power to dismiss agency leaders across the federal government. Some of these removals have raised significant controversy, most notably the dismissal of executive branch officials with statutory removal protections who were in the midst of an unfinished fixed term on an independent regulatory commission. President Trump recently dismissed members of the National Labor Relations Board (NLRB), Merit Systems Protection Board (MSPB), Federal Labor Relations Authority (FLRA), and Federal Trade Commission (FTC), multimember entities where federal law provides that they can be removed by the President only for cause.
In dismissing these officials, the President did not assert that the statutory criteria for removal had been met. Instead, the Administration has largely taken the position that statutory for-cause restrictions that limit the President’s authority to remove agency leaders are unconstitutional and therefore void. The result, the Administration argues, is that these officials may be removed by the President at will.
All of the affected officials from these four independent regulatory commissions have challenged their removal in court. Members of the NLRB, MSPB, and FLRA were initially able to obtain preliminary relief from federal district courts reinstating them to their respective agencies. The federal government appealed the lower courts’ decisions regarding the NLRB and MSPB. On March 28, 2025, a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) granted the government’s emergency motion to stay—or postpone—the reinstatement of members of the MSPB and NLRB pending resolution of the government’s appeal. In doing so, two of the three judges expressed their view that the NLRB and MSPB removal protections were likely unconstitutional. Just over a week later, all 11 D.C. Circuit judges reconsidered the earlier stay pending appeal and, by a vote of seven to four, vacated the stay of the district court’s order reinstating the members of the NLRB and MSPB. Shortly thereafter, upon request by the government, Chief Justice Roberts issued an administrative stay of the reinstatement orders to give the Supreme Court time to evaluate whether to issue a stay pending the resolution of the government’s appeal. This case and other pending lawsuits involving the FLRA and FTC remain in early stages, but they present constitutional issues that could fundamentally alter Congress’s long-standing authority to use its legislative powers to ensure that certain functions are carried out by officials with some independence or autonomy from presidential and partisan influences.
Harris v. Bessent, Wilcox v. Trump, and Grundmann v. Trump
During the first months of the second Trump Administration, President Trump removed members of the NLRB, MSPB, FLRA, and FTC. Removed board members have all challenged their removals in federal court. Federal district courts in the District of Columbia rendered decisions reinstating members of the NLRB, MSPB, and FLRA. The United States appealed the reinstatement of members of the NLRB and MSPB; in quick succession, a three-judge panel of the D.C. Circuit stayed the reinstatement order and the entire eleven-member court vacated the stay, effectively reinstating the NLRB and MSPB members. The United States did not appeal the district court’s decision in the FLRA case, and the case pertaining to the fired commissioners of the FTC is still in its early stages.
Turning first to the district court decisions, all three courts held that (1) the removal protections for each position fit within the Humphrey’s exception and were not unconstitutional infringements on the President’s removal power and (2) the removals violated each statute’s removal limitations. Although each statute differs slightly, the three decisions have a number of common themes. The decisions stressed that Seila Law explicitly preserved the Humphrey’s exception for “multimember expert agencies that do not wield substantial executive power.” The decisions also stressed that, in both Seila Law and Collins, the Court contrasted traditional multimember agencies protected by removal restrictions ruled constitutional by Humphrey’s with the novel structure of agencies led by a single director with similar protections.
All three decisions also held that the affected agencies did not wield substantial executive power. Although there are some differences in each agency’s statutory authorities, each is predominately adjudicatory—or in terms of the Humphrey’s exception, “quasi-judicial”—in that the agency’s function requires “the trained judgment of a body of experts informed by experience.” That some of these agencies can issue self-executing binding legal orders resolving disputes did not itself push them out of the scope of the Humphrey’s exception, as that exception was understood both in Humphrey’s itself and in Wiener. The district courts in the NLRB, MSPB, and FLRA cases all held that the Wiener decision foreclosed the government’s arguments that issuing binding decisions pushed the agencies outside the Humphrey’s exception.
On March 28, 2025, in the two-to-one opinion of Harris v. Bessent, the D.C. Circuit granted the government’s emergency motion for a stay pending appeal in the NLRB and MSPB cases. Judges Walker and Henderson both voted in favor of staying the district courts’ orders, and their opinions share a common thread that the NLRB and MSPB exercise substantial executive authority, placing them outside the Humphrey’s exception.
Judge Walker’s opinion focused heavily on the limited scope of the Humphrey’s exception and the nature of the power wielded by both agencies. Judge Walker explained that, “[t]o the extent that Humphrey’s created a showdown between the Myers rule and the Humphrey’s exception, the Court’s recent decisions [Seila Law & Collins] have been unequivocal: Humphrey’s has few, if any, applications today.” He went on to compare Humphrey’s to “a benched quarterback, watching Myers (and the original meaning of the Constitution) from the sidelines.” Humphrey’s, Judge Walker stressed, only controls “if the agency in question is the identical twin of the 1935 FTC (as Humphrey’s understood the 1935 FTC).”
From there, Judge Walker would find that neither the NLRB nor the MSPB are “identical twin[s]” of the 1935 FTC as Humphrey’s understood it. Rather, unlike the 1935 FTC, both agencies exercise substantial executive authority. Unlike the FTC, the NLRB is not subject to a partisan balance requirement (although in practice it has been treated as if it were) and can seek preliminary injunctions and monetary damages against private parties in federal court. Judge Walker’s analysis of the MSPB took a similar path. According to Judge Walker, although the MSPB primarily functions as an adjudicator, its adjudications resolve disputes within the executive branch—not between the government and private parties. This “intra-branch dispute resolution,” Judge Walker said, is an exercise of executive—not “quasi-judicial”—power. Judge Walker went on to explain that the MSPB can override an agency’s disciplinary actions, issue binding orders, enforce compliance with those orders, and represent itself in federal court—which he characterizes as quintessentially executive powers. The MSPB, Judge Walker reasoned, is a permanent agency with the power to “force the President to work with thousands of employees he doesn’t want to work with, an unquestionable exercise of ‘substantial executive power.'”
Judge Henderson’s opinion departs marginally from Judge Walker’s. She thought the question of whether the removal protections in the relevant statutes are constitutional is “a slightly closer call” than Judge Walker; nonetheless, she “agree[d] with many of the general principles in Judge Walker’s opinion.”
Judge Millett filed a dissenting opinion, arguing that, by granting the stay, the court effectively overruled two Supreme Court cases, Humphrey’s and Wiener—something a lower court has no power to do. Judge Millett stressed that in both Seila Law and Collins, the Court declined to revisit Humphrey’s and held that Humphrey’s remained in place. Rather than limiting Humphrey’s to apply only to the identical twin of the 1935 FTC, Seila Law and Collins declined to extend Humphrey’s to structurally distinct agencies—ones led by a single administrator. According to Judge Millett, as multimember boards (not single-administrator agencies), the NLRB and MSPB fit neatly within the scope of Humphrey’s and Wiener. Both are “predominantly adjudicatory.” Neither agency has the power to investigate or prosecute the cases before it—that is, they are “passive” and must wait for cases to be brought before them. Their charge is to adjudicate claims according to law. Further, Judge Millett opined, the agencies have limited or no capacity to enforce their orders and have limited regulatory authority. Additionally, Judge Millett explained, orders from both agencies are either reviewed or enforced by the federal courts, and both agencies are balanced along partisan lines, either by law or practice.
Just more than a week later, in a seven-to-four decision, an en banc panel of the D.C. Circuit vacated the three-judge-panel’s stay order, largely adopting the reasoning in Judge Millett’s dissenting opinion. The majority held that “[t]he Supreme Court’s repeated and recent statements that Humphrey’s Executor and Wiener remain precedential require denying” the government’s stay motions. The four dissenters would have approved the stay, because they would hold that either the statutory removal protections were likely unconstitutional or the district court exceeded its authority in ordering the reinstatement of the removed officials.
On April 9, 2025, the government petitioned the Supreme Court to stay pending appeal the lower court orders reinstating members of the MSPB and NLRB. Later that day, the Supreme Court issued an administrative stay and ordered a response to the government’s request for a stay to be filed by April 15. The administrative stay will remain in place while the Court considers the government’s petition to stay.
Orders granting or denying a stay pending appeal do not resolve the merits of the case. These decisions are based on predictions about the merits of the case. For a party to demonstrate that a stay pending appeal is appropriate, they must, among other things, make a “strong showing” that the court is likely to rule in their favor on their legal claims. The en banc panel’s decision merely found that the government was unable to make a strong showing that the removal protections in those statutes violate the Constitution. At this juncture, the Court will consider the government’s petition for a stay pending appeal, but in the meantime, the case will proceed before the D.C. Circuit. The case may proceed before a different three-judge panel than the one that considered the emergency stay motion. Briefing for the appeal concluded April 11. The court has yet to schedule oral argument.
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