The E. Barrett Prettyman U.S. Courthouse is seen in Washington, D.C.
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In a win for the White House, the D.C. Circuit Court of Appeals has cleared the way for President Trump to fire two Democratic members of independent agencies. In a 2-1 decision, the court found that restrictions on the president’s power to remove officers of the executive branch are unconstitutional.
The ruling is significant, as a number of legal challenges to Trump’s firings appear headed for the Supreme Court. While the same panel of judges earlier ruled that Trump’s firing of U.S. Special Counsel Hampton Dellinger could go forward, this latest ruling was the first Appeals Court decision involving firings at agencies led by multiple-member boards since Trump took office.
The case involves National Labor Relations Board Member Gwynne Wilcox, whom Trump fired in January, and Merit Systems Protection Board Member Cathy Harris, who was fired in February. Both agencies hear cases involving workplace complaints.
These agencies and many others have historically operated with a degree of autonomy granted by Congress. Their structure, with Democratic and Republican members serving staggered terms, has helped ensure some distance and independence from the White House.
Members are nominated by presidents and confirmed by the Senate. But in creating those agencies, Congress held that presidents can only fire members for cause, such as neglect of duty or malfeasance.
In 1935, the Supreme Court upheld those limits on the president’s power in a case known as Humphrey’s Executor about another independent agency, the Federal Trade Commission. Now the future of that 90-year-old decision is highly uncertain.
Already, the Court’s current conservative supermajority has been chipping away at that precedent, finding that it doesn’t apply to agencies with a single head.
U.S. district judges ruled that it did apply in Wilcox’s and Harris’ cases, and ordered them returned to their seats.
Those decisions led the government to ask the D.C. Circuit Court for stays in both cases. Arguments were heard last week.
Since taking office, Trump has moved swiftly to bring independent agencies under his control, issuing an executive order requiring them to “regularly consult with and coordinate policies and priorities” with the White House.
Trump has fired more than 10 Democratic members of independent agencies, most recently the two Democrats on the Federal Trade Commission, who filed a lawsuit this week in federal court.
The White House has argued that since the Constitution holds the president accountable for the actions of the executive branch, he must be able to hire and fire at will.
D.C. Circuit Judge Justin Walker agreed, writing in a concurring opinion that Article II of the Constitution vests the president with the “entire” executive power, quoting from a recent Supreme Court decision. That includes the ability to remove executive officials, he wrote.
Already, there are concerns that if Humphrey’s Executor is overturned, Trump would be at liberty to fire members of other independent agencies, including the Federal Reserve.
A group of law professors filed an amicus brief with the Supreme Court in a separate case, expressing such concerns.
“The functioning of the Federal Reserve is essential to the stability of the American economy,” the law professors wrote. “Concerns (warranted or unwarranted) that its operations could be disrupted could foster financial and political instability and cause lasting harm.”
