By Marjorie Johnson, J.D.
“Because the NLRB’s rulemaking, adjudicatory, remedial, enforcement, and election-administration powers are not solely quasi-legislative or quasi-judicial, the agency falls well outside the Humphrey’s Executor exception.”
A divided panel of the D.C. Circuit held that Congress could not prohibit President Trump from removing members of the NLRB and MSPB without cause, reversing district court rulings which had upheld the constitutionality of the statutory removal protections and reinstated former NLRB member Gwynne Wilcox and MSPB member Cathy Harris—a ruling which the Supreme Court stayed pending the appeal process. The D.C. Circuit held that the agencies “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,” and under Seila Law LLC v. Consumer Financial Protection Bureau, “Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power.” Dissenting, Judge Pan opined that “[m]y colleagues’ substantial acceptance of the government’s maximalist theory of executive power brings us closer to autocracy, harms our nation, and violates the separation of powers” (Harris v. Bessent, Nos. 25-5037 and 25-5057 (D.C. Cir. Dec. 5, 2025)).
Dismissed without cause. Shortly after taking office, Trump removed Wilcox from the NLRB and Harris from the MSPB, despite explicit legislative restrictions...
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