SCOTUS Allows Trump to Fire Two Independent Federal Board Members As Litigation Continues

The Supreme Court vacated an appeals court’s order requiring President Donald Trump to reinstate two members of independent federal boards he fired without cause earlier this year. 

The court’s 6-3 order, issued along ideological lines, upholds Trump’s dismissal of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris as lawsuits challenging their dismissals continue.

While they can proceed, the court’s order is a significant blow to the viability of their lawsuits. It also indicates that the court’s Republican-appointed majority may be leaning toward expanding Trump’s powers by overturning a 90-year-old ruling that protects independent agencies from undue presidential influence.

The majority opinion of the court claimed the balance of harms ultimately favored Trump.

“The Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority stated.

Trump fired Wilcox and Harris without cause despite federal laws specifying that NLRB and MSPB members can only be removed by presidents for specific causes, like malfeasance. 

Their dismissals are part of the Trump administration’s broad challenge to Humphrey’s Executor v. U.S., which has for decades allowed independent agencies to operate without direct control from the White House.

The Department of Justice has told the Supreme Court it intends to ask justices to overturn Humphrey’s Executor, arguing that laws limiting a president’s power to remove certain officials are unconstitutional.

The Supreme Court has not yet ruled on whether Trump violated federal laws in firing Wilcox and Harris. Thursday’s order pertained to the Trump administration’s emergency application for the court to vacate the D.C. Circuit Court of Appeals ordering it to reinstate the two board members.

If the court ultimately overturns Humphrey’s Executor, Trump would gain extraordinary powers to investigate and penalize private businesses and individuals, tilt elections and, potentially, use monetary policy for political purposes.

“Today, this Court effectively blesses those deeds. I would not,” Justice Kagan stated, sharply criticizing the decision. 

Kagan called the majority’s action “nothing short of extraordinary” and warned it allowed the president “to overrule Humphrey’s by fiat.”

Before the Supreme Court’s order Wilcox and Harris had been dismissed and reinstated five times.