Cathy Harris v. Scott Bessent

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5037 September Term, 2024

1:25-cv-00412-RC

Filed On: March 28, 2025

Cathy A. Harris, in her personal capacity and

in her official capacity as Member of the Merit

Systems Protection Board,

Appellee

v.

Scott Bessent, in his official capacity as

Secretary of the Treasury, et al.,

Appellants

------------------------------

Consolidated with 25-5055

------------------------------

No. 25-5057

1:25-cv-00334-BAH

Gwynne A. Wilcox,

Appellee

v.

Donald J. Trump, in his official capacity as

President of the United States and Marvin E.

Kaplan, in his official capacity as Chairman of

the National Labor Relations Board,

Appellants

BEFORE: Henderson, Millett*, and Walker, Circuit Judges

ORDER

Upon consideration of the emergency motions for stay filed in Nos. 25-5055 and

25-5057, the oppositions thereto, the replies, and the briefs filed by amici curiae

regarding the stay motions; it is

*

Judge Millett dissents from the grant of the emergency motions for stay.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 25-5037 September Term, 2024

ORDERED that the emergency motions for stay be granted. Separate

concurring statements of Judge Walker and Judge Henderson and a dissenting

statement of Judge Millett are attached.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

Page 2

WALKER, Circuit Judge, concurring:

Article II of the Constitution vests the “executive Power”

in “a President of the United States” and requires him to “take

Care that the Laws be faithfully executed.”1 “To protect

individual liberty, the Framers . . . created a President

independent from the Legislative Branch.”2 “To further

safeguard liberty, the Framers insisted upon accountability for

the exercise of executive power,” so they “lodged full

responsibility for the executive power in a President of the

United States, who is elected by and accountable to the

people.”3

Executive branch agencies do not disrupt that design when

they are accountable to the President. “But consent of the

governed is a sham if an administrative agency, by design, does

not meaningfully answer for its policies to either of the elected

branches.”4 That’s why the Supreme Court has said that

Congress cannot restrict the President’s removal authority over

agencies that “wield substantial executive power.”5

That Court’s precedents control this court’s case. Under

those precedents, the Government is likely to succeed in

showing that the statutory removal protections for National

Labor Relations Board commissioners and Merit Systems

Protection Board members are unconstitutional. The

Government has also shown that it will suffer irreparable harm

each day the President is deprived of the ability to control the

executive branch. Conversely, the removed officials suffer no

1

U.S. Const., art. II, §§ 1, 3.

2

Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689 (D.C. Cir.

2008) (Kavanaugh, J., dissenting).

3

PHH Corp. v. CFPB, 881 F.3d 75, 164 (D.C. Cir. 2018) (en banc)

(Kavanaugh, J., dissenting).

4

Id. at 137 (Henderson, J., dissenting).

5

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2199-2200 (2020).

2

cognizable irreparable harm during the pendency of these

appeals, nor do the agencies where they previously worked

until the President fired them. Finally, the public interest also

supports a stay. The people elected the President to enforce the

nation’s laws, and a stay serves that purpose by allowing the

people’s chosen officer to control the executive branch.

I therefore support granting the motions for a stay pending

appeal in Harris v. Bessent (25-5055) and Wilcox v. Trump (25-

5057).

I. Background

The National Labor Relations Board and the Merit

Systems Protection Board are executive branch agencies. By

the terms of statutes that the Government argues are

unconstitutional, their members may be removed only for

cause.6

On January 27, 2025, President Donald Trump removed

Gwynne Wilcox from the NLRB prior to her term’s expiration

in 2028. In an explanatory letter, the President informed

Wilcox that the NLRB had not “been operating in a manner

consistent with the objectives of [his] administration.”7 Citing

several recent Board decisions, he expressed concern that

Wilcox was “unduly disfavoring the interests of employers.”8

Wilcox sued for reinstatement on February 5, 2025. Five

days later, she moved for summary judgment on an expedited

basis. After a hearing on March 5, the district court granted

6

5 U.S.C. § 1202(d) (MSPB); 29 U.S.C § 153(a) (NLRB).

7

Pl.’s Ex. A at 2, Wilcox v. Trump, No. 25-cv-334 (D.D.C. Feb. 20,

2025), ECF No. 10-4.

8

Id.

3

summary judgment to Wilcox, declaring that she remained a

member of the NLRB and permanently enjoining the NLRB’s

Chair and his subordinates from effectuating the President’s

removal order.

A similar chain of events occurred in Harris v. Bessent.

On February 10, 2025, the President removed Cathy Harris

from the MSPB prior to her term’s expiration in 2028. Unlike

Wilcox, Harris did not receive an explanatory letter.

Harris sued for reinstatement on February 11, 2025. Seven

days later, the district court granted her request for a temporary

restraining order, effectively reinstating her to the MSPB. A

few weeks later, the court granted summary judgment for

Harris, declaring that she remained a member of the MSPB and

permanently enjoining various government officials from

executing the President’s removal order.

In defending these removals, the Government has not

argued that the President met the statutory criteria for removal.9

Instead, it has insisted that those provisions are

unconstitutional infringements on the President’s Article II

removal power — a position consistent with the President’s

recent executive order regarding independent agencies.10

9

See 5 U.S.C. § 1202(d) (removal “only for inefficiency, neglect of

duty, or malfeasance in office”); 29 U.S.C. § 153(a) (removal only

“upon notice and hearing, for neglect of duty or malfeasance in

office, but for no other cause”).

10

Exec. Order No. 14,215, Ensuring Accountability for All Agencies

(Feb. 18, 2025), https://www.federalregister.gov/d/2025-03063.

The Government also maintains that federal district courts lack

the equitable power to reinstate an officer who has been removed by

the President. Because this court grants the Government’s stay

application on alternative grounds, I have no occasion to address this

4

On that basis, the Government appealed both orders and

moved for emergency stays pending appeal. We considered

the two motions together and heard oral argument on March

18, 2025.

II. The Presidential Removal Power

Before addressing the stay factors, it is prudent to address

the text, history, and precedents that control this preliminary

merits determination.

A. History

I begin with a review of our nation’s founding period, the

creation of our Constitution, and the historical practice in the

decades that followed.

1. The Energetic Executive

Under the Articles of Confederation, the early Republic

experienced the perils of having a weak executive. With “no

executive separate from Congress,”11 the federal government

had to rely on the states’ good graces to carry out national

policies.12 And it was powerless to respond to national

argument. Cf. Bessent v. Dellinger, 145 S. Ct. 515, 517 (2025)

(Gorsuch, J., dissenting) (observing that “by the 1880s [the Supreme]

Court considered it ‘well settled that a court of equity has no

jurisdiction over the appointment and removal of public officers’”

(quoting In re Sawyer, 124 U.S. 200, 212 (1888))); Dellinger v.

Bessent, No. 25-5028, 2025 WL 559669, at *14 (D.C. Cir. Feb. 15,

2025) (Katsas, J., dissenting) (reinstating a principal officer is

“virtually unheard of”).

11

William P. Barr, The Role of the Executive, 43 Harv. J.L. & Pub.

Pol’y 605, 607 (2020).

12

Printz v. United States, 521 U.S. 898, 919 (1997).

5

emergencies, like the 1786 Shays’ Rebellion.13 As Henry

Knox put it, the federal government was but “a shadow without

power, or effect.”14

So when “the Framers met in Philadelphia in the summer

of 1787, they sought to create a cohesive national sovereign in

response to the failings of the Articles of Confederation.”15 But

the Framers also understood that a strong federal government

could be abused. They recognized that “structural

protections” — most significantly, the separation of

powers — “were critical to preserving liberty.”16 By splitting

the legislative, executive, and judicial powers, and “giving to

those who administer each department the necessary

constitutional means and personal motives to resist

encroachments of the others,” the federal government could

avoid the “gradual concentration of the several powers in the

same department.”17

After their experience with parliamentary supremacy, the

Framers were particularly concerned about the concentration

of legislative power.18 For example, Gouverneur Morris

warned delegates at the Constitutional Convention that the

“Legislature will continually seek to aggrandize & perpetuate

13

Max Farrand, The Fathers of the Constitution 95 (1921).

14

Letter from Henry Knox to George Washington (March 19, 1787),

https://perma.cc/9UCC-ZYAP.

15

PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263

(2021).

16

Bowsher v. Synar, 478 U.S. 714, 730 (1986).

17

The Federalist No. 51 (James Madison).

18

Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689 (D.C. Cir.

2008) (Kavanaugh, J., dissenting).

6

themselves.”19 Drawing on well-established political

traditions, the Framers divided Congress “into two Chambers:

the House of Representatives and the Senate.”20

Whereas the Framers divided the Legislative Power, they

unified the Executive. They were concerned that “the

weakness of the executive may require . . . that it should be

fortified.”21 After the “humiliating weakness” of the Articles

of Confederation, the “Framers deemed an energetic executive

essential to ‘the protection of the community against foreign

attacks,’ ‘the steady administration of the laws,’ ‘the protection

of property,’ and ‘the security of liberty.’”22

The Framers debated how to achieve that objective while

also avoiding the dangers of monarchy or tyranny. Some

delegates proposed a plural executive to limit the concentration

of power in any one person. For example, Edmund Randolph

pressed for a three-member executive representing different

19

James Madison’s Notes of the Constitutional Convention (July 19,

1787), https://perma.cc/HU54-J7SU.

20

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2203 (2020).

21

The Federalist No. 51.

22

First quoting Myers, 272 U.S. 52, 117 (1926); then quoting Seila

Law, 140 S. Ct. at 2203 (quoting The Federalist No. 70); see also

Adam White, Chevron Deference v. Steady Administration, Yale J.

Reg.: Notice & Comment (Jan. 24, 2024), https://perma.cc/8GLE-

2JX4 (“Energetic presidents aren’t inherently good. Rather,

presidential energy is good for a few important things—especially,

Hamilton argued, for ‘the steady administration of the laws.’”).

7

regions of the country.23 And some proposed that Congress

should choose the Executive — whether singular or plural.24

Ultimately, though, the Framers “‘insisted’ upon ‘unity in

the Federal Executive’ to ‘ensure both vigor and

accountability’ to the people.”25 So they settled on a single

executive, the President of the United States, who “would be

personally responsible for his branch.”26

That unity affords the President “[d]ecision, activity,

secrecy, and dispatch,” and it guards against a plural

executive’s tendency “to conceal faults and destroy

responsibility.”27 It also avoids “the ‘habitual feebleness and

dilatoriness’ that comes with a ‘diversity of views and

opinions.’”28

At the same time, the Framers understood the risks posed

by a strong executive. Their solution? Making “the President

the most democratic and politically accountable official in

Government,” subject to election “by the entire Nation” every

23

Daniel A. Farber & Suzanna Sherry, A History of the American

Constitution 124 (3d ed. 2013).

24

Id. at 118, 127-28.

25

Seila Law, 140 S. Ct. at 2212 (Thomas, J., concurring in part and

dissenting in part) (quoting Printz, 521 U.S. at 922) (cleaned up).

26

Akhil Reed Amar, America’s Constitution: A Biography 197

(2005); see also Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer,

J., concurring in the judgment) (“Article II makes a single President

responsible for the actions of the Executive Branch in much the same

way that the entire Congress is responsible for the actions of the

Legislative Branch, or the entire Judiciary for those of the Judicial

Branch.”).

27

The Federalist No. 70 (Alexander Hamilton).

28

Seila Law, 140 S. Ct. at 2203 (quoting The Federalist No. 70).

8

four years.29 The “resulting constitutional strategy is

straightforward: divide power everywhere except for the

Presidency, and render the President directly accountable to the

people through regular elections.”30

2. Original Understanding of the Removal Power

Against that backdrop, the Constitution assigns a lofty role

to the President. Article II vests the “executive Power” in the

“President of the United States of America.”31 And it charges

the President to “take Care that the Laws be faithfully

executed.”32

Of course, the President cannot carry out his duties “alone

and unaided” — he must enlist the “assistance of

subordinates.”33 The Framers envisioned a “chain of

dependence” in the executive branch, where “the lowest

officers, the middle grade, and the highest, will depend, as they

ought, on the President.”34 The Vesting Clause empowers the

President to direct and control those officials. As James

Madison explained, “if any power whatsoever is in its nature

executive, it is the power of appointing, overseeing, and

controlling those who execute the laws.”35

29

Id.

30

Id.

31

U.S. Const. art. II, § 1.

32

Id. § 3.

33

Myers, 272 U.S. at 117.

34

1 Annals of Congress 499 (1789) (James Madison).

35

Id. at 463; see also Neomi Rao, Removal: Necessary and Sufficient

for Presidential Control, 65 Ala. L. Rev. 1205, 1215 (2014) (“The

text and structure of Article II provide the President with the power

to control subordinates within the executive branch.”).

9

That includes “a power to oversee executive officers

through removal.”36 Because the Constitution provided no

textual limits on that “traditional executive power,” “it

remained with the President.”37

Founding-era history confirms that understanding. The

First Congress encountered the question directly, and its debate

and decision — now called “the Decision of 1789” — provides

“contemporaneous and weighty evidence of the Constitution’s

meaning since many of the Members of the First Congress had

taken part in framing that instrument.”38

During the summer of 1789 “ensued what has been many

times described as one of the ablest constitutional debates

which has taken place.”39 The topic of the President’s removal

power came up “during consideration of a bill establishing

certain Executive Branch offices and providing that the officers

36

Free Enterprise Fund, 561 U.S. at 492 (quoting Letter from James

Madison to Thomas Jefferson (June 30, 1789), in 16 Documentary

History of the First Federal Congress 893 (2004)).

37

Id. (cleaned up).

The absence of a “removal clause” does not mean the President

lacks a removal power, just as the absence of a “‘separation of

powers clause’ or a ‘federalism clause’” does not undercut those

“foundational doctrines.” Seila Law, 140 S. Ct. at 2205. As the

Supreme Court has “explained many times before, the President’s

removal power stems from Article II’s vesting of the ‘executive

Power’ in the President.” Id.

38

Bowsher, 478 U.S. at 723-24 (internal quotation marks omitted).

39

Parsons v. United States, 167 U.S. 324, 329 (1897).

10

would be subject to Senate confirmation and ‘removable by the

President.’”40

The House debated various theories, including that

Congress could specify the President’s removal authority on an

office-by-office basis, that officers could be removed only

through impeachment, that removal required the advice and

consent of the Senate, and that the “executive power” conferred

plenary removal authority to the President.41

The last view, advocated by James Madison, prevailed:

The “executive power included a power to oversee executive

officers through removal.”42 To avoid giving the impression

that Congress had any say in the President’s removal decisions,

the House deleted the bill’s provision making officers

“removable by the President.”43

In retrospect, the Decision of 1789 has been viewed as “a

legislative declaration that the power to remove officers

appointed by the President and the Senate [is] vested in the

President alone.”44

40

Free Enterprise Fund, 537 F.3d at 691 (Kavanaugh, J., dissenting)

(quoting Myers, 272 U.S. at 111).

41

Aditya Bamzai & Saikrishna Prakash, The Executive Power of

Removal, 136 Harv. L. Rev. 1756, 1774 (2023).

42

Free Enterprise Fund, 561 U.S. at 492.

43

Myers, 272 U.S. at 113-14.

44

Id. at 114; see also id. at 144 (the Decision of 1789 “has ever been

considered as a full expression of the sense of the legislature on this

important part of the American constitution” (quoting 5 John

Marshall, The Life of George Washington 200 (1807)).

The district court in Wilcox took a different view of the Decision

of 1789. Wilcox v. Trump, No. 25-334, 2025 WL 720914, at *12

(D.D.C. Mar. 6, 2025). To the extent the Decision of 1789 is

11

3. Historical Practice

The understanding that the President holds unrestricted

removal power “became widely accepted during the first 60

years of the Nation.”45 George Washington removed “almost

twenty officers, including a consul, diplomats, tax collectors,

surveyors, and military officers.”46 What’s more, his

commissions typically stated that officeholders served during

“the pleasure of the President,” indicating Washington’s

apparent belief that he could dismiss officers at will.47 Then-

Secretary of State Timothy Pickering — the official in charge

of signing commissions — confirmed the meaning of that

language: “In all cases except that of the Judges, it has been

established from the time of organizing the Government, that

susceptible to multiple interpretations, I follow the Supreme Court’s.

See Myers, 272 U.S. at 114; Parsons, 167 U.S. at 328-30; Bowsher,

478 U.S. at 723; Free Enterprise Fund, 561 U.S. at 492; Seila Law,

140 S. Ct. at 2197.

At least one amicus disputes the Supreme Court’s settled view of

the historical evidence. Constitutional Accountability Center Br. at

10-12. Although Alexander Hamilton originally took the position

that Senate consent would be required to remove an officer, The

Federalist No. 77 (Alexander Hamilton), he “later abandoned” that

“initial” view, Seila Law, 140 S. Ct. 2205. Likewise, “whatever

Madison may have meant” by his statement in Federalist No. 39 that

“the ‘tenure’ of ‘ministerial offices generally will be a subject of

legal regulation,’” he later “led the charge” in defending the

President’s removal authority during the Decision of 1789. Seila,

140 S. Ct. at 2205 n.10. Finally, the Court has “reject[ed]” Chief

Justice Marshall’s statement in Marbury that some officers are not

“removable at the will of the executive” as “ill-considered dicta.” Id.

at 2205 (citing Myers, 272 U.S. at 136-39, 142-44).

45

Free Enterprise Fund, 537 F.3d at 692 (Kavanaugh, J., dissenting).

46

Bamzai & Prakash, The Executive Power of Removal, at 1777.

47

Id. at 1777-78.

12

removals from offices should depend on the pleasure of the

Executive power.”48

Subsequent Presidents also dismissed officers at will,

often based on political disagreements. John Adams removed

Secretary Pickering over a disagreement about America’s

alignment with France.49 (Yes, the same Pickering who

defended Washington’s removal power.) James Madison

“compelled the resignation of” Secretary of War John

Armstrong following the War of 1812.50 Andrew Jackson

removed Treasury Secretary William Duane for his refusal to

withdraw federal deposits from the Second Bank of the United

States.51 William Henry Harrison intended to remove scores of

Jacksonian officials but died before he had the chance — just

one month after entering office.52 His successor, John Tyler,

quickly carried out Harrison’s removal plans.53 Not to be

outdone, Millard Filmore dismissed Zachary Taylor’s entire

cabinet as his “first act in office.”54

To be sure, these removals sometimes prompted minor

opposition from Congress. For example, after Jackson

removed Surveyor General Gideon Fitz, “the Senate adopted a

resolution requesting the President to communicate” his

48

Id. at 1778 (quoting Letter from James Monroe to Timothy

Pickering (July 31, 1797), in 3 The Writings of James Monroe 73, 75

n.1 (Stanislaus Murray Hamilton ed., 1969) (quoting a letter from

Pickering to Monroe)).

49

Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive

62 (2008).

50

Id. at 79.

51

Id. at 106, 108.

52

Id. at 131-32.

53

Id. at 135.

54

Id. at 148.

13

reasons for firing Fitz to aid in the Senate’s “constitutional

action upon the nomination of his successor.”55 Jackson

refused to comply with what he deemed “unconstitutional

demands.”56 Presidents in our nation’s first hundred years

faced other similarly halfhearted resolutions in response to

their exercise of the removal power.57

One exceptional case was the impeachment of Andrew

Johnson, following his removal of Secretary of War Edwin

Stanton.58 The impeachment charged Johnson with violating

the 1867 Tenure of Office Act, which required Senate consent

to remove officers.59 Much of Johnson’s defense centered on

his view that the Act was unconstitutional,60 a view the

Supreme Court later endorsed.61

The Senate narrowly acquitted Johnson.62 “The

contentious Johnson episode ended in a way that discouraged

congressional restrictions on the President’s removal power

and helped preserve Presidential control over the Executive

55

Myers, 272 U.S. at 287 n.77 (Brandeis, J., dissenting).

56

Id.

57

See, e.g., id. at 279-81 & nn. 64 & 67 (Brandeis, J., dissenting)

(discussing proposals to require “the President to give the number

and reasons for removals”).

58

Calabresi & Yoo, The Unitary Executive, at 185.

59

Id. at 179.

60

David Miller DeWitt, The Impeachment and Trial of Andrew

Johnson 445 (1903).

61

See Myers, 272 U.S. at 176 (declaring the Tenure of Office Act

“invalid” “in so far as it attempted to prevent the President from

removing executive officers who had been appointed by him by and

with the advice and consent of the Senate”).

62

Calabresi & Yoo, The Unitary Executive, at 186.

14

Branch.”63 It now “stands as one of the most important events

in American history in maintaining the separation of powers

ordained by the Constitution.”64

A few decades later, another removal dispute arose when

Grover Cleveland dismissed U.S. Attorney Lewis Parsons prior

to the conclusion of Parsons’ statutory four-year term.65

Parsons argued that the President could not remove him until

the four-year term elapsed.66 The Court disagreed. After

recounting the Decision of 1789 and the “continued and

uninterrupted practice” of plenary presidential removal, the

Court construed Parsons’ four-year term as a ceiling for how

long he could remain in office — not as a restriction on the

President’s power to remove him sooner.67

As this history demonstrates, the Founders understood that

the President had inherent, inviolable, and unlimited authority

to remove principal officers exercising substantial executive

authority, and Presidents have exercised that authority since the

very beginning of the Republic, beginning with George

Washington.

B. Precedent

With those historical underpinnings, I turn to the Supreme

Court’s more recent precedents. The Court has reaffirmed the

President’s inherent removal power on several occasions,

63

Free Enterprise Fund, 537 F.3d at 692 (Kavanaugh, J., dissenting).

64

Id. at 692-93.

65

Parsons, 167 U.S. at 327-28.

66

Id. at 328.

67

Id. at 338-39, 340.

15

relying often on the historical evidence recounted in the

preceding section.

That is not to say the Court’s removal-power jurisprudence

has always been consistent. Though the Court in Myers

reaffirmed the President’s unilateral removal power,

Humphrey’s Executor created an exception to the rule. It left

future courts to decide when that exception might apply. To

the extent that Humphrey’s created a showdown between the

Myers rule and the Humphrey’s exception, the Court’s recent

decisions have been unequivocal: Humphrey’s has few, if any,

applications today. To discern the Supreme Court’s rule, I

review the Court’s holdings, beginning with Myers.

1. Myers

In 1920, President Woodrow Wilson removed postmaster

Frank Myers from office.68 Myers sought backpay, relying on

a statute that required the President to obtain Senate approval

before removing him — something the President had

indisputably not done.69 The question before the Court was

whether the Constitution permitted such a restriction.

Writing for the Court, Chief Justice Taft undertook a deep

historical survey, concluding that the statutory provision

denying the President the “unrestricted power of removal” was

“in violation of the Constitution and invalid.”70 That survey

highlighted much of the history recounted above, including the

Decision of 1789. The Court focused on four points advanced

68

Myers, 272 U.S. at 106.

69

Id. at 107-08.

70

Id. at 176.

16

by James Madison and his allies during that congressional

debate.

First, Myers stressed that the President’s supervisory

power over officers is crucial for protecting the separation of

powers: “If there is any point in which the separation of the

legislative and executive powers ought to be maintained with

great caution, it is that which relates to officers and offices.”71

It further explained that to “take care that the laws be faithfully

executed,” the President must be able to “select those who were

to act for him under his direction” and remove “those for whom

he cannot continue to be responsible.”72 The Court’s

conclusion: “[N]o express limit was placed on the power of

removal by the executive” and “none was intended.”73

Second, the Court considered whether the Senate’s role in

presidential appointments carried with it a corresponding role

in removals. It concluded that history would not support that

inference. The power of removal “is different in its nature from

that of appointment,” as was “pointed out” in the First

Congress’s debate.74 That’s because a Senate veto of a removal

“is a much greater limitation upon the executive branch, and a

much more serious blending of the legislative with the

executive, than a rejection of a proposed appointment.”75 So

where the Constitution does not directly provide Congress any

power over removals, that power “is not to be implied.”76

71

Id. (quoting 1 Annals of Congress 581 (1789) (James Madison)).

72

Id. at 117, 122.

73

Myers, 272 U.S. at 118.

74

Id. at 121.

75

Id.

76

Id.

17

Third, the Court observed that Congress’s power to create

offices did not carry a corresponding power to limit the

President’s removal power over them. The “legislative power”

is “limited to” the powers “enumerated” under Article I of the

Constitution; the “executive power” is a “more general

grant.”77 Thus, the Court found it “reasonable to suppose” that

if the Founders “intended to give to Congress power to regulate

or control removals,” they would have included those powers

“among the specifically enumerated legislative powers in

article 1, or in the specified limitations on the executive power

in article 2.”78

Fourth and finally, the Court noted the threat that Congress

could “thwart[ ] the executive in the exercise of his great

powers and in the bearing of his great responsibility by

fastening upon him . . . men who” might render his faithful

execution of the laws “difficult or impossible” — be it “by

their inefficient service under him, by their lack of loyalty to

the service, or by their different views of policy.”79 To avoid

this possibility, the moment that the President “loses

confidence in the intelligence, ability, judgment, or loyalty of

any one of [his subordinates], he must have the power to

remove him without delay.”80

The Court specifically included within that authority the

power to remove executive officers whose duties include those

“of a quasi judicial character.”81 Though the Court noted that

“the President cannot . . . properly influence or control” the

discharge of such duties, he may still “consider the decision

77

Id. at 128.

78

Myers, 272 U.S. at 128.

79

Id. at 131.

80

Id. at 134.

81

Id. at 135.

18

after its rendition as a reason for removing the officer. . . .

Otherwise he does not discharge his own constitutional duty of

seeing that the laws be faithfully executed.”82

Myers was a landmark decision. It established that the

President’s removal power is grounded in the Constitution’s

text and history and bolstered by tradition. It is essential to the

constitutional separation of powers and to the President’s

ability to “take Care that the Laws be faithfully executed.”83

2. Humphrey’s Executor

Then came Humphrey’s Executor.84 It reaffirmed the core

holding of Myers — that the President holds an “illimitable

power of removal” over “purely executive officers.”85 But “in

six quick pages devoid of textual or historical precedent for the

novel principle it set forth,”86 Humphrey’s carved out an

exception for agencies that wield “no part of the executive

power.”87

According to the Court, that exception permitted Congress

to insulate officers of the relevant agency, the Federal Trade

Commission, from at-will removal. That exception rested on

the Court’s characterization of the FTC as an entity that

exercised “no part of the executive power” and that in no way

acted as “an arm or an eye of the executive.”88 Instead, the

82

Id.

83

U.S. Const. art. I, § 3.

84

Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

85

Id. at 627-28.

86

Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J.,

dissenting).

87

Humphrey’s Executor, 295 U.S. at 628.

88

Id.

19

Court viewed the agency as “wholly disconnected from the

executive department” — “an agency of the legislative and

judicial departments.”89

Confronted with the 1935 FTC’s role in investigating and

reporting violations of the law — responsibilities typically

associated with the executive branch — the Court insisted that

the 1935 FTC did not wield “executive power in the

constitutional sense,” even if it performed an “executive

function.”90 To justify the distinction, it classified the agency’s

work as “neither political nor executive, but predominantly

quasi judicial and quasi legislative.”91

The Humphrey’s Court conceded the ambiguity inherent

in its ruling, acknowledging a potential “field of doubt”

between Myers — where presidential removal power over

purely executive officers was absolute — and Humphrey’s,

which permitted removal restrictions only if an agency

“exercise[d] no part of the executive power.”92 Rather than

clarifying the boundaries between these categories, the Court

explicitly deferred such questions for “future consideration and

determination.”93

89

Id. at 630.

90

Id. at 28.

I say the “1935 FTC” to distinguish it from the 2025 FTC, which

exercises greater power than the 1935 FTC. See, e.g., Collins v.

Yellen, 141 S. Ct. 1761, 1806 (2021) (Sotomayor, J., concurring in

part and dissenting in part) (“1935 FTC did not [have] the power to

impose fines”).

91

Id. at 624.

92

Id. at 628, 632.

93

Id. at 632.

20

As the rest of this survey will show, subsequent decisions

by the Supreme Court have come close to closing the gap that

Humphrey’s left. The Court has consistently declined to extend

Humphrey’s beyond its facts and has instead reaffirmed Myers

as the default rule that occupies the “field of doubt” for any

agency that wields the substantial executive power that

Humphrey’s understood the 1935 FTC not to exercise.

3. Wiener

One might say Humphrey’s had “one good year” in 1958,

when the Court applied it in Wiener v. United States.94 There,

the Court “read a removal restriction into the War Claims Act

of 1948” because the War Claims Commission “was an

adjudicatory body.”95

The Wiener opinion took for granted that the Commission

was purely an adjudicatory body. Indeed, the Commission’s

entire responsibility, in the Court’s view, consisted of

“receiv[ing] and adjudicat[ing] . . . three classes of claims”

defined by statute.96 Nothing more. So in Wiener, the

Humphrey’s exception continued unchanged: Officers of

agencies that do not exercise executive power may be insulated

from presidential removal.

94

357 U.S. 349 (1958); cf. Cass Sunstein, Nondelegation Canons, 67

U. Chi. L. Rev. 315, 322 (2000).

95

Collins, 141 S. Ct. 1761, 1783 n.18.

96

Wiener, 357 U.S. at 354 (quoting War Claims Act of 1948, Pub. L.

No. 80-896, ch. 826, § 3, 62 Stat. 1240, 1241 (codified at 50 U.S.C.

§ 4102)).

21

4. Free Enterprise Fund

The Court declined to extend Humphrey’s in Free

Enterprise Fund v. PCAOB.97 That case involved a challenge

to the Public Company Accounting Oversight Board’s double-

layer removal protections — its members were removable only

for cause by SEC commissioners who in turn were removable

only for cause.98

Reversing a panel decision of this court, the Supreme

Court rejected the Board’s structure as a violation of the

Vesting Clause, the Take Care Clause, and the Constitution’s

separation of powers.99 Multi-layered removal protections

rendered the President helpless to “oversee the faithfulness of

the officers who execute” the law.100 If an inferior officer

performed poorly, the President could not remove him; nor

could the President remove the poor performer’s supervisor for

failing to carry out the desired removal.101 As a result, the

President had no way to hold officers accountable in the

executive branch.

According to Free Enterprise Fund, the Founders created

a unitary executive in part to ensure political accountability to

the people. Because citizens “do not vote for the ‘Officers of

the United States,’” they must instead “look to the President to

guide the ‘assistants or deputies . . . subject to his

97

561 U.S. 477 (2010).

98

Id. at 487.

99

Id. at 484, 492.

100

Id. at 484.

101

Id.

22

superintendence.”102 Without this “clear and effective chain of

command,” voters cannot identify “on whom the blame or the

punishment” should fall when the government errs.103

The Court stressed that its decision did not constrain the

size of the executive branch but instead safeguarded its

accountability. The larger and more complex the executive

branch becomes, the greater the risk that it will “slip from the

Executive’s control, and thus from that of the people.”104 As

the executive branch expands — wielding “vast power and

touch[ing] almost every aspect of daily life” — its

accountability to a democratically elected President is even

more essential.105

Where did Free Enterprise Fund leave Myers? It called

Myers a “landmark.”106 And it reaffirmed Myers’ “principle

that Article II confers on the President ‘the general

administrative control of those executing the laws,’” including

the removal power.107

And Humphrey’s? The Court declined to extend that

decision to “a new type of restriction.”108 So Free Enterprise

102

Free Enterprise Fund, 561 U.S. at 497-98 (first quoting U.S.

Const. art I, § 2, cl. 2, then quoting The Federalist No. 72 (Alexander

Hamilton)).

103

Id. at 498 (quoting The Federalist No. 70 (Alexander Hamilton)).

104

Id. at 499.

105

Id.

106

Id. at 492.

107

Free Enterprise Fund, 561 U.S. at 492 (quoting Myers, 272 U.S.

at 164).

108

Id. at 514.

23

Fund’s reasoning “is in tension with” Humphrey’s,109

including Humphrey’s departure from Myers’ “traditional

default rule” that “removal is incident to the power of

appointment.”110 For any future case about an agency in the

“field of doubt” between Myers and Humphrey’s, the Court

directed us to apply Myers, not Humphrey’s.

5. Seila Law

The Court again declined to extend Humphrey’s in Seila

Law LLC v. CFPB.111 That case presented another “new

situation”: “an independent agency,” the Consumer Financial

Protection Bureau, “led by a single Director and vested with

significant executive power.”112

As in Free Enterprise Fund, the Supreme Court repudiated

a decision of this court.113 And as in Free Enterprise Fund, the

Supreme Court took the President’s absolute removal power as

expressed in Myers as “the rule,” with Humphrey’s as a limited

exception.114 The Court explained that Humphrey’s represents

“the outermost constitutional limits of permissible

congressional restrictions on the President’s removal power,”

109

PHH Corp. v. CFPB, 881 F.3d 75, 194 n.18 (D.C. Cir. 2018) (en

banc) (Kavanaugh, J., dissenting) (citing In re Aiken County, 645

F.3d 428, 444-46 (D.C. Cir. 2011) (Kavanaugh, J., concurring)); see

also Rao, Removal, at 1208.

110

Free Enterprise Fund, 561 U.S. at 509.

111

140 S. Ct. 2183, 2203 (2020).

112

Id. at 2201.

113

See id. at 2194 (discussing PHH Corp. v. CFPB, 881 F.3d 75

(D.C. Cir. 2018) (en banc)).

114

Id. at 2201.

24

and it declined to extend Humphrey’s to the novel agency

structure at issue in Seila Law.115

The Court fashioned a clear rule for the Humphrey’s

exception: It applies only to “multimember expert agencies that

do not wield substantial executive power.”116

Once again, Seila Law confirmed that in cases falling in

the “field of doubt” between Myers and Humphrey’s, Myers

controls.

6. Collins

Collins v. Yellen applied Seila Law’s holding to another

independent agency led by a single top officer — the Federal

Housing Finance Authority.117 In doing so, the Court doubled

down on its prior reasoning and has been understood by

some — including Justice Kagan — to have gone even further

than Seila Law in affirming the Myers default rule.118

First, the Court rejected the argument that FHFA’s more

limited authority justified its removal protection.119 Instead,

the Court reaffirmed the President’s removal power as serving

“vital purposes” regardless of an agency’s scope or power.120

115

Id. at 2200 (quoting PHH Corp., 881 F.3d at 196 (Kavanaugh, J.,

dissenting)) (emphasis added).

116

Id. at 2200-01.

117

See 141 S. Ct. 1761, 1783-87 (2021).

118

Id. at 1801 (Kagan, J., concurring in part and concurring in the

judgment) (noting the majority jettisoned “significant executive

power” from the test in Seila Law).

119

Id. at 1784-85.

120

Id. at 1784.

25

Second, the Court rejected the argument that the FHFA

doesn’t exercise executive power given its role as a conservator

or receiver, in which it sometimes acts as “a private party.”121

To the contrary, the FHFA derived its power from a statute and

was tasked with interpreting and implementing that

statute — “the very essence of execution of the law.”122 The

FHFA’s ability to issue binding orders further confirmed that

it “clearly exercises executive power.”123

Third, the Court asked whether an agency that does not

regulate “purely private actors” might avoid the presidential

removal rule.124 Again, the Court answered in the negative.

Once more, it emphasized the “important purposes” served by

the removal power, regardless of whether an agency regulates

private actors directly.125 The implication: If an agency “can

deeply impact the lives of millions of Americans” through its

decisions, even indirectly, it is an agency that the President

must be able to control.126

Finally, the Court addressed whether the “modest” nature

of the FHFA director’s tenure protection — less restrictive

than other removal clauses — warranted a different

outcome.127 Again, the Court rejected the distinction, holding

121

Id. at 1785-86.

122

Collins, 141 S. Ct. at 1785 (cleaned up).

123

Id. at 1786.

124

Id.

125

Id.

126

Id.

127

Collins, 141 S. Ct. at 1786.

26

that the Constitution “prohibits even ‘modest restrictions’” on

the President’s removal power.128

Once again, Myers occupied the “field of doubt” between

the (by now exceptionally broad) Myers rule and the (by now

exceptionally narrow) Humphrey’s exception.

C. The State of the Doctrine Today

Text, history, and precedent are clear: The Constitution

vests the “entire ‘executive Power’” in the President.129 That

power “includes the ability to remove executive officials.”130

Without such power, it would be “impossible for the

President . . . to take care that the laws be faithfully

executed.”131

The Supreme Court has “left in place two exceptions to the

President’s unrestricted removal power.”132 Each of them is

binding on lower courts, even if each of them is also on

jurisprudential life support. One of them — Morrison v.

Olson — is not relevant here.133

The second exception is Humphrey’s. It allows Congress

to restrict the President’s removal power for “a multimember

body of experts, balanced along partisan lines, that perform[s]

legislative and judicial functions” and exercises “no part of the

128

Id. at 1787 (quoting Seila Law, 140 S. Ct. at 2205).

129

Seila Law, 140 S. Ct. at 2197.

130

Id.

131

Id. at 2198 (quoting Myers, 272 U.S. at 164).

132

Id.

133

487 U.S. 654 (1988); cf. Seila Law, 140 S. Ct. at 2200 (Morrison

covers “inferior officers with limited duties and no policymaking or

administrative authority”).

27

executive power.”134 Under modern Supreme Court precedent,

that exception stretches no further than partisan-balanced

“multimember expert agencies that do not wield substantial

executive power.”135

For a court to conclude that an executive agency wields

substantial executive power, it need not assemble a fact-

intensive catalog of the agency’s executive functions. The

default: Executive agencies exercise executive power. The

exception covers only an agency materially indistinguishable

from the 1935 FTC, as Humphrey’s understood the 1935 FTC.

Why did the Supreme Court narrow Humphrey’s so

severely in Seila Law and Collins?

Perhaps it was because Humphrey’s “authorize[s] a

significant intrusion on the President’s Article II authority to

exercise the executive power and take care that the laws be

faithfully executed.”136

Or perhaps it was because Humphrey’s “did not pause to

examine how a purpose to create a body ‘subject only to the

people of the United States’ — that is, apparently, beyond

control of the constitutionally defined branches of

134

Id. at 2198-99 (second part quoting Humphrey’s Executor, 295

U.S. at 628).

135

Id. at 2199-2200.

Although the CFPB does not conduct adjudications, it’s clear that

Seila’s “substantial executive power” test applies to adjudicatory

agencies like the MSPB and NLRB. After all, Seila was describing

the exception in Humphrey’s, which dealt with an adjudicatory

agency — the 1935 FTC.

136

Free Enterprise Fund, 537 F.3d at 696 (Kavanaugh, J.,

dissenting).

28

government — could itself be sustained under the

Constitution.”137

Or perhaps it was because Humphrey’s relied on

inconsistent separation-of-powers logic, which fails to account

for how “an agency can at the same moment reside in both the

legislative and the judicial branches” without infringing on “the

‘fundamental necessity of maintaining each of the three general

departments of government entirely free from the control or

coercive influence . . . of either of the others.’”138

Or perhaps still it was because Humphrey’s made

incomprehensible distinctions “between ‘executive function’

and ‘executive power.’”139 “Of course the commission was

carrying out laws Congress had enacted; in that sense its

functions could hardly have been characterized as other than

executive, whatever procedures it employed to accomplish its

ends.”140

Whatever the reason, without overturning Humphrey’s,

the Supreme Court has seemed “keen to prune . . .

Humphrey’s.”141 The Court’s recent opinions have

“characterized the ‘independent agencies’ as executive and

137

Peter L. Strauss, The Place of Agencies in Government:

Separation of Powers and the Fourth Branch, 84 Colum. L. Rev.

573, 611-12 (1984).

138

Id. at 612 (quoting Humphrey’s Executor, 295 U.S. at 629).

139

Id.

140

Id.

141

Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive

Power of Removal, 136 Harv. L. Rev. 1756, 1759 (2023).

29

have rejected the notion that these agencies exercise quasi-

legislative or quasi-judicial powers.”142

No wonder that Humphrey’s has been mostly ignored in

recent years by Supreme Court majorities — like a benched

quarterback watching Myers (and the original meaning of the

Constitution) from the sideline.

To be clear, this court must “follow the case which directly

controls, leaving to th[e] [Supreme] Court the prerogative of

overruling its own decisions.”143 We cannot overrule

142

Id.

Recent Supreme Court precedents have “doubted Congress’s

ability to vest any judicial power (whether ‘quasi’ or not) in an

executive agency.” Severino v. Biden, 71 F.4th 1038, 1050 (D.C.

Cir. 2023) (Walker, J., concurring) (citing Oil States Energy

Services, LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365,

1372-73 (2018)). And “congress cannot delegate legislative power

to the president.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692

(1892); cf. Mistretta v. United States, 488 U.S. 361, 419 (1989)

(Scalia, J., dissenting) (“Strictly speaking, there is no acceptable

delegation of legislative power.”). As a result, while specifically

listing an executive agency’s executive functions is a sufficient basis

for concluding the President may remove that agency’s principal

officers, it is not a necessary basis. See Collins, 141 S. Ct. at 1801

(Kagan, J., concurring in part and concurring in the judgment)

(arguing that Collins “broaden[ed]” Seila Law by clarifying that “the

constitutionality of removal restrictions does not hinge on the nature

and breadth of an agency’s authority” (cleaned up)). If it’s not

exercising executive power, what is it doing in the executive branch?

Cf. Severino, 71 F.4th at 1050 (Walker, J., concurring) (“[I]t might

be that little to nothing is left of the Humphrey’s exception to the

general rule that the President may freely remove his subordinates.”).

143

Mallory v. Norfolk Southern Railway Co., 143 S. Ct. 2028, 2038

(2023) (quoting Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477, 484 (1989)).

30

Humphrey’s. And if the agency in question is the identical twin

of the 1935 FTC (as Humphrey’s understood the 1935 FTC)

then Humphrey’s controls.

But as Judge Henderson wrote in 2018, we should “be

loath to cede any more of Article II than Humphrey’s Executor

squarely demands.”144 Since then, Seila Law and Collins have

turned that wisdom into a binding command on the lower

courts. As in the context of Bivens — like Humphrey’s, a

precedent not overruled but severely narrowed by subsequent

decisions — “[e]ven a modest extension is still an

extension.”145 And because the Supreme Court has forbidden

extensions of Humphrey’s to any new contexts, we cannot

extend Humphrey’s — not even an inch.

III. Stay Factors

To determine whether a stay pending appeal is appropriate,

“we ask (1) whether the applicant is likely to succeed on the

merits, (2) whether it will suffer irreparable injury without a

stay, (3) whether the stay will substantially injure the other

parties interested in the proceedings, and (4) where the public

interest lies.”146 “The first two factors . . . are the most

critical.”147

144

PHH Corp., 881 F.3d at 156 (Henderson, J., dissenting).

145

Id. (Henderson, J., dissenting) (quoting Ziglar v. Abbasi, 137 S.

Ct. 1843, 1864 (2017)).

146

Ohio v. EPA, 144 S. Ct. 2040, 2052 (2024) (citing Nken v. Holder,

556 U.S. 418, 434 (2009)).

147

Nken, 556 U.S. at 434.

31

A. Likelihood of Success on the Merits

Under binding Supreme Court precedent, Congress cannot

restrict the President’s power to remove the principal officers

of agencies that “wield substantial executive power.”148 And

for the reasons explained below, the NLRB and the MSPB

“exercis[e] substantial executive authority” — as then-Judge

Kavanaugh said in a dissent later vindicated by Seila Law.149

Because those agencies exercise “substantial executive

power,”150 the Government is likely to prevail in its contention

that the President may fire NLRB commissioners and MSPB

members.

1. Wilcox v. Trump

The NLRB is an executive branch agency that administers

federal labor law.151 It has five members who are “appointed

by the President by and with the advice and consent of the

Senate.”152 They serve five-year terms, and the President

chooses “one member to serve as Chairman.”153 The statute

purports to restrict the President’s removal power.154

148

Seila Law v. CFPB, 140 S. Ct.2183, 2199-2200 (2020).

149

PHH Corp. v. CFPB, 881 F.3d 75, 173 (D.C. Cir. 2018) (en banc)

(Kavanaugh, J., dissenting).

150

Seila Law, 140 S. Ct. at 2199-2200.

151

29 U.S.C. §§ 153(a), 160(a).

152

Id. § 153(a).

153

Id.

154

See id. § 153(a) (“Any member of the Board may be removed by

the President, upon notice and hearing, for neglect of duty or

malfeasance in office, but for no other cause.”).

32

By law, the NLRB is “empowered . . . to prevent any

person from engaging in any unfair labor practice.”155 Like

other executive agencies, it carries out this law enforcement

mission by promulgating rules, overseeing adjudications,

issuing cease-and-desist orders, ordering backpay, and seeking

enforcement orders and injunctions in federal court.156

These are “exercises of . . . the ‘executive Power.’”157

When Congress validly authorizes agencies to promulgate

rules, their rulemaking is “the very essence of execution of the

law” because it requires the agency to “interpret[] a law enacted

by Congress to implement the legislative mandate.”158

Likewise, when agencies choose whether to bring enforcement

actions in federal court, their “discretion encompasses the

Executive’s power to decide whether to initiate charges for

legal wrongdoing and to seek punishment, penalties, or

sanctions against individuals or entities who violate federal

law.”159 And when agencies seek monetary relief like backpay

“against private parties on behalf of the United States in federal

court,” they exercise a “quintessentially executive power not

considered in Humphrey’s Executor.”160

155

Id. § 160(a).

156

Id. §§ 156, 160(b)-(e), (j).

157

City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (quoting

U.S. Const., art. II, § 1, cl. 1).

158

Collins v. Yellen, 141 S. Ct. 1761, 1785 (2021) (cleaned up).

159

In re Aiken County, 725 F.3d 255, 266 (D.C. Cir. 2013).

160

Seila Law, 140 S. Ct. at 2200 (2020).

33

The NLRB does all that and more. It is not a “mere

legislative or judicial aid.”161 Instead, it is a (strong) arm of the

executive branch and wields substantial executive power.162

To reinstate Wilcox, the district court relied on an

overbroad reading of Humphrey’s and a misplaced emphasis

on twentieth-century history.

First, beginning with Humphrey’s, the district court

compared the NLRB to the 1935 FTC, arguing that they share

similar functions and authorities.163 But the two agencies are

far from identical. For one thing, the NLRB is not subject to a

statutorily imposed partisan-balance requirement.164 And the

NLRB exercises authorities that the 1935 FTC did not. For

example, it has the power to go directly to federal court to seek

injunctions against employers or unions while a case is

pending.165 And the NLRB’s ability to seek monetary relief

like backpay “against private parties on behalf of the United

161

Id.

162

True, as the district court pointed out, the General Counsel

(removable at will) leads investigations and prosecutions “on behalf

of the Board.” Wilcox v. Trump, No. 25-cv-334, 2025 WL 720914,

at *7 (D.D.C. Mar. 6, 2025) (citing 29 U.S.C. § 153(d)). But the

General Counsel is subservient to the NLRB, which possesses the

sole power to seek enforcement of its orders in federal court, pursue

injunctive relief, and approve certain settlements. 29 U.S.C.

§ 160(e), (j); NLRB v. United Food & Commercial Workers Union,

Local 23, AFL-CIO, 484 U.S. 112, 121 (1987).

163

Wilcox, 2025 WL 720914 at *8-10 & n.11.

164

Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with Bite,

118 Colum. L. Rev. 9, 32 (2018).

165

29 U.S.C. § 160(j).

34

States in federal court” is a “quintessentially executive power

not considered in Humphrey’s Executor.”166

I suppose it is conceivable that the Humphrey’s Court

would have upheld removal restrictions for the NLRB had it

heard the case in 1935. But it is not our job to ask, “What

would the 1935 Court do?” Rather, we must ask what the

Supreme Court has done — in Humphrey’s yes, but also in

Seila Law, Collins, and the Court’s other precedents (guided by

the original meaning of the Constitution when binding

precedent does not answer the question).167

Under Seila Law, “the Humphrey’s Executor exception

depend[s]” on “the set of powers the [Humphrey’s] Court

considered as the basis for its decision, not any latent powers

that the agency may have had not alluded to by the Court.”168

Under Collins, “the President’s removal power serves

important purposes regardless of whether the agency in

question affects ordinary Americans by directly regulating

them or by taking actions that have a profound but indirect

effect on their lives.”169

The district court did not grapple with these developments,

instead fixating on Humphrey’s. Opposing the Government’s

stay motion, Wilcox supports that approach, repeating the

uncontroversial statement that Humphrey’s is “good law,” as if

that requires us to read it broadly when the Supreme Court’s

166

See Seila Law, 140 S. Ct. at 2200.

167

See id. at 2198-99; Collins, 141 S. Ct. at 1784-86.

168

Seila Law, 140 S. Ct. at 2198, 2200 n.4.

169

Collins, 141 S. Ct. at 1786.

35

more recent precedents command us to read it narrowly.170

That approach does not faithfully apply precedent.

Under a faithful application of Seila Law and Collins,

Humphrey’s controls only if an agency is materially

indistinguishable from the 1935 FTC. Humphrey’s covers

nothing more than that because the reasoning in Seila Law and

Collins requires a reading of Humphrey’s that covers nothing

more than that. In other words, Humphrey’s can cover only an

agency that exercises no “substantial executive power.” The

district court “chants [Humphrey’s Executor] like a mantra, but

no matter how many times it repeats those words, it cannot give

[Humphrey’s Executor] substance” that Seila Law and Collins

say “that it lacks.”171

Strikingly, the district court gave short shrift to Collins,

dismissing it in a footnote because it involved a single-headed

agency and the Court “reaffirmed it ‘did not revisit its prior

decisions.’”172 Of course neither Seila Law nor Collins

overruled Humphrey’s. But we are not free to ignore the

Supreme Court’s binding interpretation of its precedent simply

because the Court didn’t overrule that precedent.

After Seila Law, a removal restriction is valid only if it

(1) applies to a “multimember expert agenc[y], balanced along

partisan lines” that (2) does not “wield substantial executive

power.”173 Though the FHFA in Collins clearly failed the first

prong, the Court also addressed the second prong. When

Collins did so, it arguably “broaden[ed]” Seila Law and

170

Wilcox Opp. 1, 15, 16.

171

SEC v. Jarkesy, 144 S. Ct. 2117, 2138 (2024).

172

Wilcox, 2025 WL 720914, at *11 n.13 (quoting Collins, 141 S.

Ct. at 1761) (cleaned up).

173

Seila Law, 140 S. Ct. at 2199-2200.

36

narrowed Humphrey’s even more, by asking not whether an

agency exercises “significant executive power” but only

whether an agency exercises any “executive power.”174

Second, history does not support Wilcox either. The

district court found it persuasive that no President before

President Trump removed an NLRB commissioner.175 But

Supreme Court precedent, not twentieth-century history,

resolves this case. And as the district court said, Congress’s

widespread use of independent, multimember boards and

commissions did not begin until the early 1900s.176 So even if

we were evaluating the original meaning of Article II on a

blank slate, which we aren’t, that twentieth-century history

would be of limited value for discerning the Constitution’s

original meaning.177

Finally, the district court described the President’s

removal of Wilcox as a “power grab” and “blatantly illegal.”178

But unconstitutional statutes are void ab initio because

174

Id. at 1801 (Kagan, J., concurring in part and concurring in the

judgment).

175

Wilcox, 2025 WL 720914, at *5.

176

See id. at *6.

177

Similarly unpersuasive is Wilcox’s assertion that Congress

specifically designed the NLRB to be independent. Wilcox Opp. 5-

6. That may well be true, but it does not bear on whether Article II,

as interpreted by the Supreme Court, renders NLRB removal

restrictions invalid. After all, “Members of Congress designed the

PCAOB to have ‘massive power, unchecked power.’” Free

Enterprise Fund v. PCAOB, 537 F.3d 667, 687 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting). That did not win the day at the Supreme

Court.

178

Wilcox, 2025 WL 720914, at *3, *5.

37

Congress lacks the authority to enact them.179 Such statutes are

not law, so it is not “illegal” for the President to violate them.180

And under the Supreme Court’s precedents, the President’s

actions within the executive branch cannot amount to a “power

grab” because “[t]he entire ‘executive Power’ belongs to the

President alone.”181

* * *

The NLRB exercises “substantial executive power.”182

Therefore, the Government is likely to prevail in its argument

that the NLRB’s removal protections are unconstitutional.

2. Harris v. Bessent

The Merit Systems Protection Board is an executive

agency that resolves intra-branch disputes under the Civil

179

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

180

Oral Arg. Tr. 77-78 (Question: “If [the statutory removal

restrictions] are not constitutional, then would it be legal for the

President to fire Ms. Wilcox?” Counsel for Wilcox: “I mean, I think

you’re asking a very simple question. . . . You’re saying if we lose

on everything and the statute is unconstitutional, does the President

have the ability? Yes, of course.” Question: “And if the provisions

are unconstitutional, they were always unconstitutional, right? They

were void ab initio, right?” Counsel for Wilcox: “Yes, I think that’s

the right way to think about the Constitution.” Question: “I do think

these are simple questions, but I ask because the district court said

that the President’s action was ‘blatantly illegal’ because the statute

prohibits it. Well, if it’s an unconstitutional statute, then a statutory

prohibition against it is not something that would make it ‘blatantly

illegal.’” Counsel for Wilcox: “Yes . . . .”).

181

See Seila Law, 140 S. Ct. at 2197.

182

Id. at 2199-2200.

38

Service Reform Act.183 It has three members “appointed by the

President, by and with the advice and consent of the Senate.”184

They serve seven-year terms, and only two members “may be

adherents of the same political party.”185 The Act also purports

to restrict the President’s removal power.186

Under the Civil Service Reform Act, the MSPB’s powers

are four-fold.187

1. It can “hear” and “adjudicate,” and ultimately “take

final action,” on a wide range of matters, including

removals, suspensions, furloughs, and demotions;

rights or benefits for servicemembers; whistleblower

complaints; Hatch Act violations; and other prohibited

personnel practices.188

2. It can “order any Federal agency or employee to

comply with any order or decision issued by the

[MSPB] . . . and enforce compliance with any such

order.”189

3. It can “conduct . . . special studies relating to the civil

service and to other merit systems in the executive

branch, and report to the President and to the Congress

as to whether the public interest in a civil service free

183

5 U.S.C. § 1204(a).

184

Id. § 1201.

185

Id. §§ 1201(d), 1202(a).

186

Id. § 1202 (“Any member may be removed by the President only

for inefficiency, neglect of duty, or malfeasance in office.”).

187

Id. § 1204(a).

188

Id. § 1204(a)(1); see id. §§ 1214(a)(3), 1221, 1216(a), (c),

2302(b), 4303(e), 7513(d); 38 U.S.C §§ 4322, 4324(a)(1).

189

Id. § 1204(a)(2).

39

of prohibited personnel practices is being adequately

protected.”190

4. It can “review . . . rules and regulations of the Office

of Personnel Management” and “declare such

provision[s] . . . invalid” if it would cause an employee

to commit a prohibited personnel practice.191

These are “exercises of . . . the ‘executive Power.’”192

Plus, the MSPB also represents itself in federal court — a

“quintessentially executive function.”193 And a single MSPB

member can unilaterally stay an agency’s personnel

action — or 6,000 such actions, as it turns out194 — for 45 days

without participation from the other members.195 That stay can

then be extended “for any period which the Board considers

appropriate.”196

Harris disagrees. She emphasizes the MSPB’s

“adjudicatory nature,” likening it to an “Article III court.” But

190

Id. § 1204(a)(3).

191

Id. § 1204(a)(4), (f); id. § 2302(b).

192

City of Arlington, 569 U.S. at 304 n.4 (quoting U.S. Const., art.

II, § 1, cl. 1).

193

Seila Law, 140 S. Ct. at 2200; 5 U.S.C. § 7703(a)(2).

194

Order on Stay Request, Special Counsel ex rel John Doe v.

Department of Agriculture, No. CB-1208-25-0020-U-1 (MSPB Mar.

5, 2025), https://perma.cc/3F45-PKG5.

195

5 U.S.C. § 1214(b)(1)(A)(i).

As Judge Henderson notes, there is tension between that unilateral

authority and Harris’s declaration, in which she claims she “cannot

issue adjudication decisions unilaterally.” J. Henderson Op. 5 n.1

(quoting Harris Decl. ¶ 26, Harris v. Bessent, No. 25-cv-412 (D.D.C.

Feb. 23, 2025), ECF No. 22-3).

196

Id. § 1214(b)(1)(B)(i).

40

the MSPB is not like the Federal Trade Commission in

Humphrey’s or the War Claims Commission in Wiener because

it resolves disputes within the executive branch.197 That

distinguishes it from the 1935 FTC and the War Claims

Commission, both of which adjudicated disputes between the

government and the public. MSPB adjudication is nothing

more than intra-branch dispute resolution. That’s an exercise

of executive (not quasi-judicial) power.

In additional ways, the MSPB is not like the 1935 FTC as

understood by Humphrey’s. It reviews the removal and

discipline of federal employees and has the power to directly

override other executive agencies’ disciplinary actions.198 That

gives it a significant authority that the FTC never had.

Additionally, the MSPB has the power to issue binding orders

and “enforce compliance with any such order.”199 The 1935

FTC lacked that power. It could issue cease-and-desist orders,

but if those were disobeyed, the agency had to petition to a

federal court to enforce its orders.200

Nor is the MSPB like the War Claims Commission in

Wiener. The MSPB is a permanent body, unlike the temporary

War Claims Commission, which served the limited purpose of

assigning distributions from a compensation fund.201 More

importantly, the MSPB’s powers far outstrip the War Claims

Commission’s in a critical way — it can force the President to

197

See Frazier v. MSPB, 672 F.2d 150, 154 (D.C. Cir. 1982) (the

MSPB adjudicates “conflicts between federal workers and their

employing agencies”).

198

5 U.S.C. § 7701.

199

Id. § 1204(a)(1)-(2).

200

See Humphrey’s Executor, 295 U.S. at 620-21 (citing 15 U.S.C.

§ 45).

201

Wiener v. United States, 357 U.S. 349, 350 (1958).

41

work with thousands of employees he doesn’t want to work

with, an unquestionable exercise of “substantial executive

power.”202

It’s also clear that the MSPB does not exercise quasi-

legislative functions. To the extent its ability to invalidate

certain regulations resembles legislative activity, that authority

does not involve public-facing regulation.203 So again, even

under a broad reading of Humphrey’s, the MSPB’s functions

do not align with those of the 1935 FTC or the War Claims

Commission. The MSPB “is hardly a mere legislative or

judicial aid.”204 It does far more than merely make “reports and

recommendations to Congress, as the 1935 FTC did.”205

The district court recognized that the MSPB “preserves

power within the executive branch by charging presidentially

appointed [MSPB] members with mediation and initial

adjudication of federal employment disputes.”206 But the

district court erred in concluding that the MSPB’s “features”

made any effect on the President’s exercise of the executive

power “limited.”207 To the contrary, as one member of the

Supreme Court has already acknowledged, the preserved

power within the MSPB is “substantial executive authority.”208

In Harris’s tenure alone, the MSPB resolved thousands of

cases involving “allegations that federal agencies engaged in

202

Seila Law, 140 S. Ct. at 2200.

203

See 5 U.S.C. § 1204(f).

204

Seila Law, 140 S. Ct. at 2200.

205

Id.

206

Harris v. Bessent, No. 25-cv-412, 2025 WL 679303, at *6 (D.D.C.

Mar. 4, 2025) (emphasis omitted).

207

Id.

208

PHH Corp., 881 F.3d at 173 (Kavanaugh, J., dissenting).

42

prohibited personnel practices, such as targeting of federal

employees based on political affiliation; retaliation against

whistleblowers reporting violations of law, waste, fraud and

abuse; discrimination; and [Uniformed Services Employment

and Reemployment Rights Act] violations, among others.”209

Those cases highlight that the MSPB’s focus on internal-

dispute resolution does not mean it is an insignificant or

nonexecutive agency. Just because a CEO may informally

adjudicate an internal employee dispute does not mean the

CEO is any less the chief executive officer. It’s part of the job.

What’s more, Harris has been a productive member of the

MSPB, participating “in nearly 4,500 decisions” between June

1, 2022, and February 10, 2025.210 In short, the district court’s

self-contradictory assertion that the MSPB “does not wield

substantial executive power, but rather spends nearly all of its

time adjudicating inward-facing personnel matters involving

federal employees,” tends to show that the MSPB does indeed

exercise substantial executive power.211

Finally, the position of the Department of Justice two years

ago in Severino v. Biden, supports at-will removal of MSPB

members.212 There, DOJ argued that the President’s

unrestricted removal power did not extend to the

Administrative Conference of the United States because the

Conference “does not resolve or commence matters for the

Executive Branch or determine anyone’s rights or

obligations.”213 The MSPB, in contrast, does “resolve . . .

209

Harris, 2025 WL 679303, at *14.

210

Id. at *2.

211

Id. at *6 (cleaned up).

212

71 F.4th 1038 (D.C. Cir. 2023).

213

Appellee Supplemental Brief at 5, Severino v. Biden, 71 F.4th

1038 (D.C. Cir. 2023) (No. 22-5047).

43

matters for the Executive Branch”214 — sometimes several

thousands of them in one day.215 So even according to the

understanding of presidential removal power asserted by DOJ

in Severino, the removal protections for MSPB members are

unconstitutional.

* * *

In sum, the Government is likely to prevail on its claim

that MSPB members must be removable by the President at

will and consequently that the relevant removal restrictions are

unconstitutional.

B. Irreparable Harm

A stay applicant must show that it will be irreparably

harmed absent a stay.216

Here, the Government contends that the President suffers

irreversible harm each day the district courts’ injunctions

remain in effect because he is deprived of the constitutional

authority vested in him alone. I agree.

Article II vests the President with the “entire ‘executive

Power,’” which “generally includes the ability to remove

executive officials.”217 The district courts’ orders effectively

nullify that power. That level of interference is “virtually

unheard of,” and “it impinges on the ‘conclusive and

preclusive’ power through which the President controls the

214

Id.

215

Order on Stay Request, Special Counsel ex rel John Doe v.

Department of Agriculture, No. CB-1208-25-0020-U-1 (MSPB Mar.

5, 2025), https://perma.cc/3F45-PKG5.

216

Nken, 556 U.S. at 434.

217

Seila Law, 140 S. Ct. at 2197.

44

Executive Branch that he is responsible for supervising.”218 If

the President “loses confidence in the intelligence, ability,

judgment, or loyalty of any one of [his subordinates], he must

have the power to remove him without delay.”219

To be clear, this is not an abstract constitutional injury; it

is a serious, concrete harm. Each year, the NLRB oversees tens

of thousands of unfair labor practice charges and decides (on

average) roughly 200 cases.220 Additionally, the NLRB lacks

a quorum without Wilcox, meaning the district court’s order

tips the scales in favor of political appointees that do not share

the President’s policy objectives. The President’s removal

power, properly understood, avoids that result.221

As for the MSPB, just this month, upon the motion of a

judicially reinstated Special Counsel, Harris (also judicially

reinstated) stayed the termination of roughly 6,000

probationary employees.222 Now, in opposing the

Government’s stay motion, Harris assures us that we need not

worry about such actions because the President (after action by

this court) replaced the Special Counsel. But even if Harris no

longer has the opportunity to stay personnel actions, she

218

Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *14, *16

(D.C. Cir. Feb. 15, 2025) (Katsas, J., dissenting) (quoting Trump v.

United States, 144 S. Ct. 2312, 2327-28 (2024)).

219

Myers, 272 U.S. at 134 (emphasis added).

220

Wilcox, 2025 WL 720914, at *17; Board Decisions Issued,

NLRB, perma.cc/T9XE-TF8M.

221

Such disagreement on policy is not mere speculation; the

President cited the NLRB’s recent policy decisions as a partial basis

for Wilcox’s removal.

222

Order on Stay Request at 11, Special Counsel ex rel John Doe v.

Department of Agriculture, No. CB-1208-25-0020-U-1 (MSPB Mar.

5, 2025), https://perma.cc/3F45-PKG5.

45

continues to play an ongoing role in resolving intra-branch,

employee-employer clashes, against the wishes of the “one

person” who is “responsible for all decisions made by and in

the Executive Branch.”223

The Government has established a likelihood of

irreparable harm.

C. Harm to Removed Officials

Although the two “most critical” factors support issuing

stays, I also consider whether those stays “will substantially

injure the other parties interested in the proceeding.”224

They will not. Harris and Wilcox identify harms that are

either incognizable or outweighed by the irreparable harm

suffered by the Government under the district courts’

injunctions.225

First, Wilcox and Harris assert a statutory right to remain

in office. According to Harris, a stay will prevent her “from

fulfilling her duties while removed,” which she says is

irreparable because she “took an oath of office to fulfill specific

statutory functions set out by Congress.”226 Similarly, Wilcox

223

Free Enterprise Fund, 537 F.3d at 689 (Kavanaugh, J.,

dissenting).

224

Nken, 556 U.S. at 434.

225

Vague assertions about presidential removal committing

“violence to the statute Congress enacted” will not suffice — even

setting aside that an unconstitutional statutory provision cannot be

validly enacted. See Harris Opp. 23.

226

Harris Opp. 23.

46

suggests that her removal “prevents her from carrying out the

duties Congress has assigned to her.”227

The assertion of a “statutory right” is, of course, entangled

with the merits because a statutory right exists only if the

statute is constitutional. I’ve explained why the removal

provisions here are likely not constitutional. And I assume that

Wilcox and Harris each took an oath to “support and defend the

Constitution.”228 So I’m not convinced that their removals

inflict any irreparable harm.

Second, both Harris and Wilcox allege that if we issue a

stay, their agencies will be harmed. Specifically, Wilcox

argues that she (and the other NLRB commissioners) will be

“deprived of the ability to carry out their congressional

mandate in protecting labor rights” and “suffer an injury due to

the loss of the office’s independence.”229 She adds that her

removal “eliminated a quorum, . . . bringing an immediate and

indefinite halt to the NLRB’s critical work.”230 For her part,

Harris contends “a stay would mar the very independence that

Congress afforded Harris and the other members of the

Board.”231

To begin, those are institutional interests, not personal

interests, so we may take them into account only as they relate

to the public interest. Even then, this court recently doubted its

ability to “balance [one agency’s] asserted public interest

against the public interest asserted by the rest of the executive

227

Wilcox Opp. 21 (quoting Harris v. Bessent, No. 25-cv-412, 2025

WL 521027, at *8 (D.D.C. Feb. 18, 2025)).

228

5 U.S.C. § 3331.

229

Wilcox, 2025 WL 720914, at *15-16.

230

Wilcox Opp. 21.

231

Harris Opp. 23.

47

branch.”232 Even assuming a court could weigh those

conflicting governmental interests, Wilcox admits the

President “could easily establish a majority on the Board by

appointing members to fill its two vacant positions,” solving

the quorum problem.233 And if that were not the case, “the fact

that a given law or procedure is efficient, convenient, and

useful in facilitating functions of government, standing alone,

will not save it if it is contrary to the Constitution.”234

D. Public Interest

Staying these cases pending appeal is in the public

interest. The people elected the President, not Harris or

Wilcox, to execute the nation’s laws.235

The forcible reinstatement of a presidentially removed

principal officer disenfranchises voters by hampering the

President’s ability to govern during the four short years the

people have assigned him the solemn duty of leading the

executive branch.236 One may honestly believe that labor

disputes and personnel matters are more conveniently or

efficiently resolved by an independent agency, but

232

Order at 7, Dellinger v. Bessent, No. 25-5052 (D.C. Cir. Mar. 10,

2025).

233

Wilcox Opp. 20.

234

INS v. Chadha, 462 U.S. 919, 944 (1983).

235

See Seila Law, 140 S. Ct. at 2203 (“Only the President (along with

the Vice President) is elected by the entire Nation.”); see also

Andrew Jackson, Presidential Proclamation, 11 Stat. 771, 776 (Dec.

10, 1832) (“We are one people in the choice of President and Vice-

President.”).

236

PHH Corp., 881 F.3d at 137 (Henderson, J., dissenting).

48

“[c]onvenience and efficiency are not the primary objectives—

or the hallmarks—of democratic government.”237

IV. Conclusion

The district courts did their level best in rushed

circumstances to follow Supreme Court precedent. But their

fidelity to that precedent was unduly selective. By reading

Humphrey’s Executor in an expansive manner, they read it in a

manner that Seila Law and Collins preclude. Though those

cases did not overturn Humphrey’s Executor, their holdings

relied on an exceptionally narrow reading of it.

Even the most casual reader will have guessed by now that

I agree with how Seila Law and Collins read Humphrey’s

Executor. But even if I disagreed with them, this court would

lack the authority to undo what they did. For a lower court like

us, that would be a “power grab.”238

237

Chadha, 462 U.S. at 944.

238

Wilcox, 2025 WL 720914, at *3.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in the grants of stay: I agree with many of the general

principles in Judge Walker’s opinion about the contours of

presidential power under Article II of the Constitution,

although I view the government’s likelihood of success on the

merits as a slightly closer call. Whatever the continuing vitality

of Humphrey’s, I agree that we should not extend it in this

preliminary posture during the pendency of these highly

expedited appeals. I write separately to highlight areas of the

merits inquiry that remain murky and to emphasize that the

government has easily carried its burden of showing irreparable

harm—the second of the two “most critical” stay factors. Nken

v. Holder, 556 U.S. 418, 434 (2009).

A.

I do not repeat at length here my views on the presidential

removal power doctrine pre-Seila Law LLC v. CFPB, 591 U.S.

197 (2020), which I expressed in PHH Corp. v. CFPB, 881

F.3d 75, 138 (D.C. Cir. 2018) (en banc) (Henderson, J.,

dissenting). Instead, I emphasize certain ways in which Seila

Law left unclear where the rule from Myers v. United States,

272 U.S. 52 (1926), ends and the exception from Humphrey’s

Executor, 295 U.S. 602 (1935), begins.

Seila Law described the scope of the Humphrey’s Executor

exception as applying to “multimember expert agencies that do

not wield substantial executive power.” 591 U.S. at 218. The

Court first observed that the CFPB is not a multimember expert

agency because it “is led by a single Director who cannot be

described as a ‘body of experts’ and cannot be considered ‘non-

partisan’ in the same sense as a group of officials drawn from

both sides of the aisle.” Id. The Court then distinguished the

CFPB from the 1935 FTC—which had been characterized as a

“mere legislative or judicial aid”—based on three sets of

powers. Id. Those powers “must be exercises of” the

“executive Power” under our constitutional structure but they

2

can “take ‘legislative’ and ‘judicial’ forms.” Id. at 216 n.2

(quoting City of Arlington v. FCC, 569 U.S. 290, 305 n.4

(2013)).

First, in terms of executive power with a legislative form

the CFPB Director “possesses the authority to promulgate

binding rules fleshing out 19 federal statutes, including a broad

prohibition on unfair and deceptive practices in a major

segment of the U.S. economy.” Seila Law, 591 U.S. at 218.

Second, as to executive power with a judicial form, “the

Director may unilaterally issue final decisions awarding legal

and equitable relief in administrative adjudications.” Id. at 219.

Third, regarding purely executive power, “the Director’s

enforcement authority includes the power to seek daunting

monetary penalties against private parties on behalf of the

United States in federal court—a quintessentially executive

power not considered in Humphrey’s Executor.” Id. Based on

the breadth of those three powers, and before going on to raise

other concerns about the novelty of the CFPB’s structure, the

Court held that the CFPB was “[u]nlike the New Deal-era FTC

upheld [in Humphrey’s].” Id. at 218.

The next question becomes what kind of agency—single-

or multi-headed—falls on either side of Seila Law’s

“substantial executive power” dividing line. On the one hand,

a plurality of the Seila Law court mused in its discussion of

severability that “[o]ur severability analysis does not foreclose

Congress from pursuing alternative responses to the problem—

for example, converting the CFPB into a multimember

agency.” Id. at 237 (Roberts, C.J.). But simply converting the

CFPB into a multi-headed agency could not have sufficed

because the Court had earlier explained that the CFPB failed

the Humphrey’s “substantial executive power” test. See Seila

Law, 591 U.S. at 218–19 (maj. op.) (explaining why the CFPB

itself falls outside the Humphrey’s exception). Perhaps the

3

plurality’s dictum in another section of the opinion meant that

such a response would be a necessary but not sufficient

condition. Conversely, Seila Law’s gloss on Humphrey’s did

use the same phrase—“substantial executive power”—as

Justice Kavanaugh’s dissent in PHH when he was a judge on

this court. 881 F.3d at 167 (Kavanaugh, J., dissenting). That

opinion listed both the NLRB and the MSPB as “agencies

exercising substantial executive authority.” Id. at 173.

In Collins v. Yellen, the Court further explained that “the

nature and breadth of an agency’s authority is not dispositive

in determining whether Congress may limit the President’s

power to remove its head.” 594 U.S. 220, 251–52 (2021).

Instead, “[c]ourts are not well-suited to weigh the relative

importance of the regulatory and enforcement authority of

disparate agencies, and we do not think that the

constitutionality of removal restrictions hinges on such an

inquiry.” Id. at 253; see also id. at 273 (Kagan, J., concurring

in part and concurring in the judgment) (recognizing Collins’

“broadening” of Seila Law); id. at 293 (Sotomayor, J.,

concurring in part and dissenting in part) (same). However,

Collins did not discuss Humphrey’s and the Court

characterized its decision as a “straightforward application of

our reasoning in Seila Law” because the agency there was also

“led by a single Director.” Id. at 251 (maj. op.). Thus, it is not

clear that Collins’ instruction not to weigh up the nature and

breadth of an agency’s authority extends to multimember

boards.

Accordingly, reasonable minds can—and often do—

disagree about the ongoing vitality of the Humphrey’s

exception. See, e.g., Consumers’ Rsch. v. CPSC, 98 F.4th 646

(5th Cir.) (mem.) (splitting 9–8 on whether to grant rehearing

en banc on the constitutionality of the Consumer Product

Safety Commission’s removal restrictions). But simply

4

applying Seila Law’s test and examining both the NLRB’s and

the MSPB’s executive powers—regardless of their legislative,

judicial and executive forms—the government has satisfied its

burden of showing a strong likelihood that they are substantial.

Both Wilcox and Harris concede that their agencies wield

substantial power of an “adjudicative” form—indeed, that is

how they hope to fall within the Humphrey’s exception. We

must therefore consider those powers that are of a legislative

and executive form.

The NLRB has traditionally preferred to set precedent by

adjudicating, Wilcox v. Trump, 2025 WL 720914, at *9

(D.D.C. Mar. 6, 2025), but it retains broad authority of a

legislative form to promulgate “such rules and regulations as

may be necessary to carry out” its statutory mandate, 29 U.S.C.

§ 156. Moreover, its regulatory authority over labor relations

affects a “major segment of the U.S. economy.” Seila Law,

591 U.S. at 218. Indeed, the district court explained that the

NLRB was established by the Congress “in response to a long

and violent struggle for workers’ rights,” Wilcox, 2025

WL 720914, at *3, and emphasized its indisputably “important

work,” id. at *17. Granted, the NLRB’s executive power is

partly bifurcated because the General Counsel investigates

charges and prosecutes complaints before the Board. See 29

U.S.C. § 153(d). However, as Judge Walker points out, the

Board retains the power to “seek monetary relief like backpay

‘against private parties on behalf of the United States in federal

court,’ [which is] a ‘quintessentially executive power not

considered in Humphrey’s Executor.’” Op. (Walker, J.) at 32

(quoting Seila Law, 591 U.S. at 219).

The MSPB’s powers are relatively more circumscribed. In

terms of power of a legislative form, its rulemaking authority

is limited to issuing “such regulations as may be necessary for

the performance of its functions.” 5 U.S.C. § 1204(h).

5

However, it possesses the negative power, even if rarely used,

to review sua sponte and invalidate regulations issued by the

Office of Personnel Management. Id. § 1204(f). As to power

of an executive form, at least in certain circumstances it

represents itself litigating in federal court. See Harris Decl.

¶ 33 (Harris Opp’n App. B at 7–8); 5 U.S.C. §§ 1204(i),

7703(a)(2). As the Supreme Court stated in Buckley v. Valeo,

424 U.S. 1, 139–40 (1976), the “responsibility for conducting

civil litigation in the courts of the United States for vindicating

public rights” is one of the “executive functions.” The MSPB’s

litigation power also distinguishes it from other agencies that

cannot be respondents in federal court. See, e.g., Oil, Chem. &

Atomic Workers Int’l Union v. OSHRC, 671 F.2d 643, 651–53

(D.C. Cir. 1982) (explaining that the Occupational Safety and

Health Review Commission cannot be a respondent in federal

court and contrasting it with the NLRB). And Harris as a single

MSPB member recently wielded considerable power over the

executive by temporarily reinstating thousands of probationary

employees. Order on Stay Request (Mar. 5, 2025) (Harris

Opp’n App. C).1

Granted, in Seila Law the Court distinguished the Office

of the Special Counsel from the CFPB in part because the OSC

“does not bind private parties,” 591 U.S. at 221, and the MSPB

similarly operates entirely within the executive branch. But it

may be that the Court was simply highlighting that the CFPB

posed more of a threat to individual liberty than the OSC rather

than diminishing the constitutional problem of dividing power

within the executive branch. Compare PHH, 881 F.3d at 183

(Kavanaugh, J., dissenting) (emphasizing the CFPB’s structure

1

Indeed, Harris’s declaration recites that she “cannot issue

adjudication decisions unilaterally,” Harris Decl. ¶ 26 (Harris Opp’n

App. B at 5), thereby conceding that perhaps her most expansive

action to date—“staying” the termination of executive branch

employees by the thousands—is not in fact adjudicative.

6

as a threat to individual liberty), with Seila Law, 591 U.S. at

223 (explaining that the Framers sought to “divide” the

legislative power and “fortif[y]” the executive power) (quoting

The Federalist No. 51 (J. Madison)).

Accordingly, the first Nken factor is a somewhat closer call

in my view than in Judge Walker’s but the government has met

its “strong showing” burden at this stage because of the

substantial executive power that the NLRB and MSPB both

wield.

B.

In addition, the government has more than satisfied its

burden to show irreparable harm that far outweighs any harm

to Harris and Wilcox from a stay. As Harris concedes, the

“question of whether the government will prevail is distinct

from whether the government will suffer irreparable harm

absent a stay.” Harris Opp’n 19. Thus, we consider whether

any harm suffered by the government can be undone if it

prevails.

As this panel explained in Dellinger v. Bessent, “it is

impossible to unwind the days during which a President is

‘directed to recognize and work with an agency head whom he

has already removed.’” Dellinger v. Bessent, No. 25-5052, slip

op. at 6 (D.C. Cir. Mar. 10, 2025) (alterations omitted) (quoting

Dellinger v. Bessent, 2025 WL 559669, at *16 (D.C. Cir. Feb.

15, 2025) (Katsas, J., dissenting)). Such a requirement

encroaches on the President’s “conclusive and preclusive”

power to supervise those wielding executive power on his

behalf. Trump v. United States, 603 U.S. 593, 608–09 (2024)

(citing Seila Law, 591 U.S. at 204; Myers, 272 U.S. at 106).

Harris is also wrong to downplay the government’s injury

as a “vague assertion of harm to the separation of powers.”

7

Harris Opp’n 20. In addition to the concrete actions by the

NLRB and the MSPB that Judge Walker details, Op. (Walker,

J.) at 45, the executive branch—not merely the separation of

powers—is harmed through (1) a “[d]iminution of the

Presidency” and (2) a “[l]ack of accountability,” see PHH, 881

F.3d at 155–60 (Henderson, J., dissenting).

First, as the Supreme Court explained in Free Enterprise

Fund v. PCAOB, 561 U.S. 477, 499 (2010), our “Constitution

was adopted to enable the people to govern themselves,

through their elected leaders.” The growth of the “headless

Fourth Branch” of government, FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 525–26 (2009) (Scalia, J.),

“heightens the concern that [the Executive Branch] may slip

from the Executive’s control, and thus from that of the people,

Free Enter. Fund, 561 U.S. at 499. It is incongruous with the

President’s duty to “take Care that the Laws be faithfully

executed,” U.S. Const. art. II, § 3, that he be “fasten[ed]” with

principal officers who “by their different views of policy might

make his taking care that the laws be faithfully executed most

difficult or impossible,” Myers, 272 U.S. at 131. It makes no

difference that the President can appoint the chair or other

members of a board to reduce the magnitude or duration of this

diminution—it is a diminution nonetheless. See PHH, 881

F.3d at 156–57 (Henderson, J., dissenting) (“Even assuming

the CFPB violates Article II only some of the time—a year

here, a couple years there—that is not a strong point in its

favor.”).

Second, the Framers decided to check the President’s

uniquely concentrated power by making him “the most

democratic and politically accountable official in

Government.” Seila Law, 591 U.S. at 224. That accountability

is “enhanced by the solitary nature of the Executive Branch,

which provides ‘a single object for the jealousy and

8

watchfulness of the people.’” Id. (quoting The Federalist No.

70 (A. Hamilton)). Accordingly, the President “cannot

delegate ultimate responsibility or the active obligation to

supervise that goes with it . . . .” Id. (quoting Free Enter. Fund,

561 U.S. at 496–97). Without the power to remove principal

officers, “the President could not be held fully accountable for

discharging his own responsibilities; the buck would stop

somewhere else.” Free Enter. Fund, 561 U.S. at 514. That the

buck would stop with members of a board rather than a solitary

agency head obstructing his agenda does not eliminate his

injury.

Conversely, both Harris and Wilcox assert harm from their

inability to perform their official functions in addition to any

backpay to which they may be entitled if they prevail. See

Wilcox Opp’n 21 (arguing harm of deprivation of “statutory

right to function”) Harris Opp’n 23 (arguing stay will “prevent

Harris from fulfilling her duties”). Indeed, the district courts

found injuries to Harris and Wilcox in being deprived of the

“statutory right to function” as well as distinct injuries to their

agencies. Harris v. Bessent, 2025 WL 679303, at *13 (D.D.C.

Mar. 13, 2025) (quoting Berry v. Reagan, 1983 WL 538, at *5

(D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949 (D.C.

Cir. 1983) (per curiam)); see also Wilcox, 2025 WL 720914, at

*15–16 (citing Berry, 1983 WL 538, at *5). Needless to say,

we are not bound by a vacated district court decision from 40

years ago. At this stage at least, it is far from clear that Harris

or Wilcox may assert rights against the executive branch on

behalf of their offices or agencies as opposed to themselves

personally. See Op. (Walker, J.) at 46–48.

For its part, the government cites Raines v. Byrd, 521 U.S.

811, 820 (1997), for the proposition that “public officials have

no individual right to the powers of their offices.” Harris Gov’t

Mot. 3; Wilcox Gov’t Mot. 3. The Supreme Court in Raines

9

pointed out that if a federal court were to have heard a dispute

between the President and the Congress about the

constitutionality of restrictions on the presidential removal

power, it “would have been improperly and unnecessarily

plunged into the bitter political battle being waged between”

them. Raines, 521 U.S. at 827. Instead, Presidents wait for “a

suit brought by a plaintiff with traditional Article III standing.”

Id. Here, we are being asked to enter a political battle between

the institutional offices of the NLRB, the MSPB and other

executive-branch officials, including the President.

The district court in Harris sought to distinguish Raines by

observing that it addressed whether legislators had standing to

challenge a vote that did not go their way, that the injury was

diffused across members of the Congress and that “the

legislators did not claim injury arising from ‘something to

which they personally are entitled.’” 2025 WL 679303, at *13

(quoting Raines, 521 U.S. at 821). But the next clause of the

quoted language reads: “such as their seats as Members of

Congress after their constituents had elected them.” Raines,

521 U.S. at 821. Here, voters elected the President, not Harris

or Wilcox. As in Raines, Harris’s and Wilcox’s “injury thus

runs (in a sense) with the Member’s seat, a seat which the

Member holds (it may quite arguably be said) as trustee . . . ,

not as a prerogative of personal power.” Id. (citing The

Federalist No. 62 (J. Madison)). Moreover, in Raines the

legislators “had not been authorized to represent their

respective Houses of Congress in th[e] action, and indeed both

Houses actively oppose[d] their suit.” Id. at 829. Here, there

is at least a serious question whether Harris and Wilcox seek to

vindicate personal rights or only those of the office and agency,

and their suits are actively opposed by their own branch of

government.

10

As we recently explained in Dellinger, “[a]t worst” Harris

and Wilcox “would remain out of office for a short period of

time.” Dellinger, slip op. at 7. Because we have ordered highly

expedited merits briefing with the agreement of the parties, that

period is particularly brief. See Order, Wilcox v. Trump, No.

25-5057 (D.C. Cir. Mar. 18, 2025); Order, Harris v. Bessent,

No. 25-5037 & 25-5055 (D.C. Cir. Mar. 18, 2025). “By

contrast, the potential injury to the government of . . . having

to try and unravel [Harris’s and Wilcox’s] actions is

substantial.” Dellinger, slip op. at 7. Thus, even if the first

Nken factor is not a lead-pipe cinch, the injury-focused factors

plainly favor a stay.

C.

In terms of the public interest, and as we explained in

Dellinger, it is not clear how we could balance Harris’s and

Wilcox’s asserted public interest on behalf of the MSPB and

NLRB continuing to function as the Congress intended against

the public interest asserted by the rest of the executive branch.

See Dellinger, slip op. at 7. And of course, “[o]nly the

President (along with the Vice President) is elected by the

entire Nation.” Seila Law, 591 U.S. at 224. At minimum, this

factor does not weigh in Harris’s and Wilcox’s favor.

***

Accordingly, the government has met its burden for grants

of a stay during the pendency of these appeals.

MILLETT, Circuit Judge, dissenting: The two opinions

voting to grant a stay rewrite controlling Supreme Court

precedent and ignore binding rulings of this court, all in favor

of putting this court in direct conflict with at least two other

circuits. The stay decision also marks the first time in history

that a court of appeals, or the Supreme Court, has licensed the

termination of members of multimember adjudicatory boards

statutorily protected by the very type of removal restriction the

Supreme Court has twice unanimously upheld.

What is more, the stay order strips the National Labor

Relations Board and the Merit Systems Protection Board of the

quora that the district courts’ injunctions preserved, disabling

agencies that Congress created and funded from acting for as

long as the President wants them out of commission. That

decision will leave languishing hundreds of unresolved legal

claims that the Political Branches jointly and deliberately

channeled to these expert adjudicatory entities. In addition, the

majority decisions’ rationale openly calls into question the

constitutionality of dozens of federal statutes conditioning the

removal of officials on multimember decision-making

bodies—everything from the Federal Reserve Board and the

Nuclear Regulatory Commission to the National

Transportation Safety Board and the Court of Appeals for

Veterans Claims.

That would be an extraordinary decision for a lower federal

court to make under any circumstances. But what makes it

even more striking is that all we are supposed to decide today

is whether a stay pending appeal should issue. As to that

narrow question, the stay decision is an unprecedented and, in

my view, wholly unwarranted use of this court’s stay power,

which is meant only to maintain the status quo pending an

appeal. See Nken v. Holder, 556 U.S. 418, 429

(2009) (“A stay simply suspend[s] judicial alteration of

the status quo,” which is defined as “the state of affairs before

the removal order[s] [were] entered.”) (citation omitted);

2

Washington Metro. Area Transit Comm’n v. Holiday Tours,

Inc., 559 F.2d 841, 844 (D.C. Cir. 1977) (A stay pending appeal

is “preventative, or protective; it seeks to maintain the status

quo pending a final determination of the merits of the suit.”);

see also Huisha-Huisha v. Mayorkas, 27 F.4th 718, 733–734

(D.C. Cir. 2022) (“[T]he status quo [i]s ‘the last peaceable

uncontested status’ existing between the parties before the

dispute developed.”) (quoting 11A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 2948 (3d ed. 1998)).

I cannot join a decision that uses a hurried and preliminary

first-look ruling by this court to announce a revolution in the

law that the Supreme Court has expressly avoided, and to trap

in legal limbo millions of employees and employers whom the

law says must go to these boards for the resolution of their

employment disputes. I would deny a stay.

I

A

These cases arise out of the summary termination, without

notice, of two members of multimember adjudicatory bodies

that Congress created to resolve disputes impartially and free

of political influence for reasons of grave national importance.

Cathy Harris is a member of the Merit Systems Protection

Board (“MSPB”). The MSPB is an adjudicatory body that

primarily reviews federal employees’ appeals alleging that

their government employer discriminated against them based

on their race, color, gender, political affiliation, religion,

national origin, age, disability, or marital status; retaliated

against them for whistleblowing; failed to comply with

protections for veterans; or otherwise subjected them to an

3

adverse employment action, such as termination, suspension,

or a reduction in pay grade, 5 U.S.C. §§ 1204(a)(1); 1221;

2302(b)(1), (8)–(9); 3330a(d); 7512.

The MSPB has three members who are appointed by the

President with the advice and consent of the Senate to serve

seven-year terms. 5 U.S.C. §§ 1201, 1202(a)–(c). No more

than two members of the MSPB may belong to the same

political party. Id. § 1201. The President can also appoint one

of the members, with the advice and consent of the Senate, as

the Chair of the MSPB. Id. § 1203(a). MSPB members may

be removed only for “inefficiency, neglect of duty, or

malfeasance in office.” Id. § 1202(d).

Gwynne Wilcox is a member, and former Chair, of the

National Labor Relations Board (“NRLB”), which Congress

charged with “prevent[ing] any person from engaging in any

unfair labor practice[.]” 29 U.S.C. § 160(a). The NLRB has

two distinct parts. The five-member Board, on which Wilcox

sits, adjudicates appeals of labor disputes from administrative

law judges. Id. § 153(a). Separately, the NLRB General

Counsel prosecutes unfair labor-practice charges. Id. § 153(d);

see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 139

(1975). These two divisions of the Board operate

independently. NLRB. v. United Food & Com. Workers Union,

Loc. 23, AFL-CIO, 484 U.S. 112, 118 (1987).

When reviewing administrative law judge decisions, the

NLRB reviews the entire record, receives briefing, and issues

its own decision on both the facts and the law. 29 U.S.C.

§ 160(c); 29 C.F.R. § 101.12. The Board may issue a cease-

and-desist order to halt unfair labor practices, or it may issue

an order requiring reinstatement of terminated employees, with

or without backpay, and similar equitable remedies. 29 U.S.C.

4

§ 160(c). These orders, however, are not self-executing. They

are enforceable only by a federal court. Id. § 160(e).

The President appoints NLRB members with the advice

and consent of the Senate, and the members serve staggered

five-year terms. 29 U.S.C. § 153(a). The President also

designates one of the members to serve as Chair. Id. Congress

limited the President’s power to remove a Board member to

“neglect of duty or malfeasance in office,” and required

advance notice and a hearing. Id. In contrast, the President

may remove the General Counsel at will. See id. § 153(d).

B

1

Cathy Harris began her seven-year term as a member of the

MSPB in June 2022. On February 10, 2025, Harris received

an email from the White House Office of Presidential

Personnel stating: “On behalf of President Donald J. Trump, I

am writing to inform you that your position on the Merit

Systems Protection Board is terminated, effective

immediately.” Declaration of Cathy Harris (“Harris Decl.”)

¶ 4. The email did not allege any inefficiency, neglect of duty,

or malfeasance on Harris’s part.

Harris filed suit on February 11th, challenging her removal

as ultra vires, unconstitutional, and a violation of the

Administrative Procedure Act. She sought relief under the

Declaratory Judgment Act, issuance of a writ of mandamus,

and equitable relief. The district court awarded summary

judgment to Harris and granted a permanent injunction and

declaratory relief maintaining her in office. Harris v. Bessent,

__ F. Supp. 3d __, No. 25-cv-412 (RC), 2025 WL 679303, at

*3 (D.D.C. March 4, 2025). The court added that, if equitable

5

relief were “unavailable[,]” it would issue a writ of mandamus

“as an alternative remedy at law.” Id. at *15.

2

Gwynne Wilcox was confirmed in September 2023 for her

second term as a member of the NLRB. President Biden

designated her Chair of the Board in December 2024. On

January 27, 2025, Wilcox received an email from the White

House Office of Presidential Personnel stating that she was

“hereby removed from the office of Member[] of the National

Labor Relations Board.” Declaration of Gwynne Wilcox Ex.

A, at 1. Wilcox did not receive the statutorily required advance

notice of her termination, and the email did not offer Wilcox a

hearing or claim any neglect of duty or malfeasance on her part.

Id.; see also Motions Hearing Tr. 51:6–14 (March 5, 2025)

(government acknowledging that Wilcox was not “removed for

any neglect or malfeasance”).

Wilcox sued President Trump and the new Board

Chairman, Marvin Kaplan, on February 5th, alleging that her

removal violated the National Labor Relations Act. Her

complaint sought an injunction directing Kaplan to reinstate

her as a member of the Board. Because the suit involved only

questions of law, Wilcox promptly moved for expedited

summary judgment. The district court granted summary

judgment for Wilcox, holding that her removal was unlawful

and issued a permanent injunction maintaining her in office.

Wilcox v. Trump, __ F. Supp. 3d__, No. 25-cv-334 (BAH),

2025 WL 720914, at *5, 18 (D.D.C. Mar. 6, 2025).

6

3

The government appealed the judgments in both Harris’s

and Wilcox’s cases and seeks a stay of the district courts’

judgments.

II

A stay pending appeal is an “extraordinary” remedy.

Citizens for Resp. & Ethics in Washington v. Federal Election

Comm’n, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam).

To obtain such exceptional relief, the stay applicant must (1)

make a “strong showing that [it] is likely to succeed on the

merits” of the appeal; (2) demonstrate that it will be

“irreparably injured” before the appeal concludes; (3) show

that issuing a stay will not “substantially injure the other parties

interested in the proceeding”; and (4) establish that “the public

interest” favors a stay. Nken, 556 U.S. at 434 (quoting Hilton

v. Braunskill, 481 U.S. 770, 776 (1987)).

The government has satisfied none of those stay factors.

First, the government has failed to make any showing, let alone

a “strong showing[,] that [it] is likely to succeed on the merits”

in its appeal to this court. Nken, 556 U.S. at 434; see also id.

(the likelihood of success on the merits and irreparable injury

are the “most critical” factors). Controlling Supreme Court

precedents—Humphrey’s Executor v. United States, 295 U.S.

602 (1935), and Wiener v. United States, 357 U.S. 349

(1958)—establish that the MSPB and NLRB’s for-cause

removal protections are constitutional. Circuit precedent binds

this panel to that same conclusion. In addition, the

government’s efforts to de-constitutionalize those statutory

protections are unlikely to succeed given the long tradition of

removal limitations and their particular justifications.

7

Second, the government has not identified any irreparable

harm that would arise from a stay while these appeals are

expeditiously decided. Its argument that the President’s

removal power is irreparably impaired depends entirely on this

court overturning Supreme Court rulings holding that these

removal protections do not unconstitutionally encroach on the

President’s power.

Third, the balance of harms to the plaintiffs and the public

interest weighs strongly against a stay.

III

A

The Supreme Court’s decisions in Humphrey’s Executor

and Wiener squarely foreclose the government’s arguments on

appeal. In those cases, the Supreme Court unanimously held

that for-cause removal protections like those applicable to

MSPB and NLRB members were constitutional as applied to

officials on multimember independent agencies that exercise

quasi-adjudicatory and quasi-legislative functions within the

Executive Branch—just like those undertaken by the MSPB

and NLRB. Humphrey’s Executor, 295 U.S. at 624; Wiener,

357 U.S. at 355–356.

In Humphrey’s Executor, the Supreme Court upheld for-

cause removal protections for members of the Federal Trade

Commission (“FTC”). 295 U.S. at 620. The Court reasoned

that, as a five-member board with no more than three

commissioners from the same political party, the FTC was

designed to be “nonpartisan” and “act with entire impartiality.”

Id. at 619–620, 624. In addition, the FTC was “charged with

the enforcement of no policy except the policy of the law.” Id.

at 624.

8

In that way, the FTC’s functions were held to be

“predominantly quasi-judicial and quasi-legislative.”

Humphrey’s Executor, 295 U.S. at 624. The Commission’s

functions were quasi-judicial because it could hold

“hearing[s]” on claims alleging “unfair methods of

competition,” prepare “report[s] in writing stating its findings

as to the facts,” and “issue * * * cease and desist order[s,]”

which only federal courts (and not the FTC itself) could

enforce. Id. at 620–622, 628. The FTC was quasi-legislative,

in that the Commission “fill[ed] in and administer[ed] the

details” of the Federal Trade Commission Act and made

“investigations and reports * * * for the information of

Congress[.]” Id. at 628.

The Supreme Court reaffirmed Humphrey’s Executor two

decades later. In Wiener, the Court upheld for-cause removal

protections for members of the War Claims Commission—a

three-member body that adjudicated Americans’ injury and

property claims against Nazi Germany and its allies. 357 U.S.

at 350. The Court concluded that the Commission could not

accomplish its adjudicatory function—fairly applying

“evidence and governing legal considerations” to the “merits”

of claims—without some protection against removal. Id. at

355–356. The Constitution, the Court held, permitted

sheathing “the Damocles’ sword of removal” by instituting for-

cause protections for Commission members. Id. at 356.

The Wiener Court also clarified what qualifies as a “quasi-

judicial” function. It explained that, even though the

Commission was part of the Executive Branch, its role was

purely adjudicatory because Congress “chose to establish a

Commission to ‘adjudicate according to law’ the classes of

claims defined in the statute[.]” Wiener, 357 U.S. at 355. That

9

demonstrated the “intrinsic judicial character of the task with

which the Commission was charged.” Id.

B

Humphrey’s Executor and Wiener are precedential

decisions that bind this court. Even as the Supreme Court has

rejected more modern and novel constraints on the removal of

single heads of agencies exercising substantial executive

power, its modern precedent has consistently announced that

Humphrey’s Executor remains “in place[.]” Seila Law v.

CFPB, 591 U.S. 197, 215 (2020); see id. at 228 (“not

revisit[ing] Humphrey’s Executor”); Collins v. Yellen, 594 U.S.

220, 250–251 (2021) (recognizing that Seila Law did “not

revisit [] prior decisions”) (quoting Seila Law, 591 U.S. at 204);

see also Morrison v. Olson, 487 U.S. 654, 687 (1988) (in case

involving restrictions on removal of an inferior officer,

recognizing that Humphrey’s Executor remains good law); see

generally Free Enter. Fund v. Public Acct. Oversight Bd., 561

U.S. 477, 483 (2010) (in case involving multimember board,

declining to “reexamine” Humphrey’s Executor); id. at 501

(“[W]e do not” “take issue with for-cause limitations in

general[.]”).

Free Enterprise Fund, for example, held unconstitutional

double-layered for-cause removal protections. That is,

Members of the Public Company Accounting Oversight Board

could be removed only for cause by the Securities Exchange

Commission, whose members, in turn, the Court accepted

could be removed by the President only for cause. Free Enter.

Fund, 561 U.S. at 484–487. The Supreme Court held that a

twice-restricted removal power imposed too great a constraint

on the President’s authority. Id. at 492.

10

In devising a remedy, the Supreme Court left the Securities

and Exchange Commission’s accepted single-layer removal

protections intact; only the Board’s protections were stricken.

Free Enter. Fund, 561 U.S. at 492, 495, 509. The Court found

this would be a sufficient constitutional remedy because, even

with the Commissioners enjoying for-cause protection, the

President could “then hold the Commission to account for its

supervision of the Board, to the same extent that he may hold

the Commission to account for everything else it does.” Id. at

495–496. In so ruling, the Court repeated the rule from

Humphrey’s Executor that “Congress can, under certain

circumstances, create independent agencies run by principal

officers appointed by the President, whom the President may

not remove at will but only for good cause.” Id. at 483.

Seila Law likewise repeated that Humphrey’s Executor

remains governing precedent. In that case, the Supreme Court

invalidated the removal protections for the Consumer Financial

Protection Bureau (“CFPB”)’s single director because she had

“sole responsibility to administer 19 separate consumer-

protections statutes” and could “unilaterally, without

meaningful supervision, issue final regulations, oversee

adjudications, set enforcement priorities, initiate prosecutions,

and determine what penalties to impose on private parties.”

Seila Law, 591 U.S. at 219, 225. Structural features of the

CFPB further insulated the director from presidential control.

Because the agency was headed by one director with a five-

year term, “some Presidents may not have any opportunity to

shape its leadership and thereby influence its activities.” Id. at

225. The CFPB also receives its funding from the Federal

Reserve Board, which is funded outside of the annual

appropriations process, further diluting presidential oversight.

Id. at 226.

11

Importantly, the Supreme Court’s decision was explicit that

Humphrey’s Executor remains “in place.” Seila Law, 591 U.S.

at 215; id. at 228 (“[W]e do not revisit Humphrey’s Executor

or any other precedent today[.]”). In fact, in Seila Law, three

Justices invited Congress to “remedy[] the [CFPB’s] defect” by

“converting the CFPB into a multimember agency,” id. at 237

(Roberts, C.J., joined by Alito and Kavanaugh, JJ., concurring

in the judgment), and four more Justices agreed that such a

redesign would be constitutional, id. at 298 (Kagan, J., joined

by Ginsburg, Breyer, and Sotomayor, JJ., concurring in the

judgment with respect to severability and dissenting in part).

Most recently, the Supreme Court’s decision in Collins,

which struck down another single-headed agency performing

predominantly executive functions, also acknowledged that

Humphrey’s Executor remained precedential. Collins, 594

U.S. at 250–251.

C

Under the precedent set in Humphrey’s Executor and

Wiener, and preserved in Free Enterprise Fund, Seila Law, and

Collins, the MSPB and NLRB removal protections are

constitutional.

1

The MSPB is a “multimember expert agenc[y] that do[es]

not wield substantial executive power[.]” Seila Law, 591 U.S.

at 218. No more than two of its three members may hail from

the same political party. 5 U.S.C. § 1201; see also Humphrey’s

Executor, 295 U.S. at 624 (“The commission is to be

nonpartisan[.]”). MSPB members serve staggered seven-year

terms, giving each President the “opportunity to shape [the

Board’s] leadership and thereby influence its activities.” Seila

12

Law, 591 U.S. at 225. President Trump, in fact, will be able to

appoint at least two of the MSPB’s three members.

In the government’s own words, the MSPB is

“predominantly an adjudicatory body.” Oral Arg. Tr. 12:19–

23. The MSPB has no investigatory or prosecutorial role.

Instead, it hears disputes between federal employees and

federal agencies. 5 U.S.C. §§ 1204(a)(1), 7701(a). As such,

the MSPB is passive and must wait for appeals to be initiated

either by employees who have suffered an adverse employment

action, discrimination, or whistleblower retaliation, or by

employing agencies or the Office of Special Counsel. Id.

§§ 1204(a)(1), 1214(b)(1)(a); 5 C.F.R. § 1201.3; see Seila Law,

591 U.S. at 219–220 (reiterating the constitutionality of

removal protections for an officer who wielded “core executive

power” because “that power, while significant, was trained

inward to high-ranking Governmental actors identified by

others, and was confined to a specified matter in which the

Department of Justice had a potential conflict of interest”). 1

Like the War Claims Commission in Wiener, the MSPB

must “‘adjudicate according to law’ the classes of claims

defined in the statute[.]” 357 U.S. at 355. That confirms the

“intrinsic judicial character of the task with which” the MSPB

is “charged.” Id.

1

In the exercise of its adjudicatory authority, the MSPB has

limited jurisdiction. Only civil servants that fall within the statutorily

defined term “employee” can seek its review. 5 U.S.C.

§§ 7511(a)(1), 7701(a); see also Roy v. MSPB, 672 F.3d 1378, 1380

(Fed. Cir. 2012). That definition excludes, among other categories,

political appointees and civil servants in “probationary” or “trial

period[s]” of employment. 5 U.S.C. § 7511(a)(1); see also Roche v.

MSPB, 596 F.3d 1375, 1383 (Fed. Cir. 2010).

13

The history of the MSPB as a bifurcated entity reinforces

its almost exclusively adjudicatory role. In 1978, Congress

divided the Civil Service Commission into the Office of

Personnel Management and the MSPB. Civil Service Reform

Act of 1978, Pub. L. No. 95-454, § 201, 92 Stat. 1111, 1119.

The Office of Personnel Management was tasked with

“executing, administering, and enforcing * * * civil service

rules and regulations[,]” while the MSPB—then, as now—was

tasked with adjudicating disputes. Id. § 202, 92 Stat. at 1122.

Once the MSPB issues decisions, federal agencies and

employees are expected to “comply” with its orders, 5 U.S.C.

§ 1204(a)(2), but the MSPB has no independent means of

enforcing its orders. Cf. Humphrey’s Executor, 295 U.S. at

620–621 (FTC cease-and-desist orders could only be enforced

by application “to the appropriate Circuit Court of

Appeals[.]”).

In addition, most MSPB decisions are subject to Article III

review. Employees can appeal to federal court any decision

that “adversely affect[s] or aggrieve[s]” them, and the Director

of the Office of Personnel Management can petition for judicial

review of any MSPB decision that the Director believes is

erroneous and “will have a substantial impact on a civil service

law, rule, regulation, or policy directive.” 5 U.S.C.

§ 7703(a)(1), (d)(1).

The MSPB has limited rulemaking authority to prescribe

only those regulations “necessary for the performance of its

functions,” many of which are akin to the federal rules of

procedure and local rules that courts adopt. 5 U.S.C.

§ 1204(h); see, e.g., 5 C.F.R. §§ 1201.14 (electronic filing

procedures), 1201.23 (computation of time for deadlines),

1201.26 (service of pleadings). It also must prepare “special

studies” and “reports” on the civil service for the President and

14

Congress, 5 U.S.C. § 1204(a)(3), but these are just

“recommendations[,]” carry no force of law, and are not

enforced by the MSPB, Harris Decl. ¶ 30; see Humphrey’s

Executor, 295 U.S. at 621 (citing 15 U.S.C. § 46). In addition,

the MSPB remains accountable to the President and Congress

through the appropriations process. See, e.g., Pub. L. No. 118-

47, 138 Stat. 557 (2024). That affords the President an

“opportunity to recommend or veto spending bills” to fund its

operations. Seila Law, 591 U.S. at 226.

2

The NLRB also fits the Humphrey’s Executor and Wiener

mold. Indeed, Congress enacted the National Labor Relations

Act, which created the NLRB, just over a month after

Humphrey’s Executor was decided and modeled the statute on

the FTC’s organic statute. Compare National Labor Relations

Act, Pub. L. No. 74-198, 49 Stat. 449 (1935), with An Act to

create a Federal Trade Commission, Pub. L. No. 63-203, 38

Stat. 717 (1914); see also J. Warren Madden, Origin and Early

Years of the National Labor Relations Act, 18 HASTINGS L.J.

571, 572–573 (1967).

As designed, the NLRB is a “multimember” agency that

does “not wield substantial executive power[.]” Seila Law, 591

U.S. at 218. It is composed of five members that serve

staggered five-year terms, thus affording each President the

chance to affect its composition. 29 U.S.C. § 153(a); see also

Seila Law, 591 U.S. at 225. Though the Act does not require

the Board’s members to be balanced across party lines,

Presidents since Eisenhower have adhered to a “tradition” of

appointing no more than three members from their own party.

Brian D. Feinstein & Daniel J. Hemel, Partisan Balance with

Bite, 118 COLUM. L. REV. 9, 54–55 (2018). No one disputes

15

that continues to be the case with the current Board of which

Wilcox is a member.

The NLRB is predominantly an adjudicatory body. It hears

complaints alleging unfair labor practices by employers and

labor unions. Glacier Northwest v. International Bhd. of

Teamsters Loc. Union No. 174, 598 U.S. 771, 775–776 (2023).

It can issue cease-and-desist orders aimed at unfair labor

practices and orders requiring reinstatement or backpay. 29

U.S.C. § 160(c). These orders, however, are not independently

enforceable. They must be given legal force by a federal court

of appeals. Id. at §§ 154(a), 160(e); see also Dish Network

Corp. v NLRB, 953 F.3d 370, 375 n.2 (5th Cir. 2020) (The

NLRB “needs a court’s imprimatur to render its orders

enforceable.”). In addition, any person “aggrieved” by an

NLRB decision may obtain judicial review in federal court. 29

U.S.C. § 160(f).

Conspicuously absent from the NLRB’s authority is any

power to investigate or prosecute cases. That authority is left

to the (removable-at-will) General Counsel. See 29 U.S.C.

§ 153(d). So the NLRB’s powers are less than those of the FTC

in Humphrey’s Executor because the FTC could launch

investigations “at its own instance[.]” Brief for Samuel F.

Rathbun, Executor, at 46 n.21, Humphrey’s Executor, 295 U.S.

602 (1935) (No. 667); see Seila Law, 591 U.S. at 219 n.4

(“[W]hat matters” for assessing Humphrey’s Executor “is the

set of powers the Court considered as the basis for its

decision[.]”).

Like the MSPB, the NLRB is funded through congressional

appropriations. See, e.g., Pub. L. No. 118-47, 138 Stat. 698

(2024). Also like the MSPB, the NLRB has circumscribed

rulemaking authority. It can issue rules and regulations that are

necessary to carry out its statutory duties. 29 U.S.C. § 156. As

16

part of this authority, the NLRB may promulgate interpretive

rules “advis[ing] the public of [its] construction” of the

National Labor Relations Act, Shalala v. Guernsey Mem’l

Hosp., 514 U.S. 87, 99 (1994) (citation omitted), but Article III

courts review those interpretations de novo, Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 394 (2024).

D

All of that makes the answer to the question whether the

government is likely to succeed in its appeal an easy “No.” The

unanimous holdings in Humphrey’s Executor and Wiener that

removal restrictions on multimember, non-partisan bodies

engaged predominantly in adjudicatory functions are

constitutional bind this court, especially in light of the Supreme

Court’s repeated preservation of that precedent and Seila Law’s

express invitation for Congress to change the CFPB into a

multimember body.

The government and my colleagues’ opinions press two

central arguments to escape this binding authority, but neither

affords the government a likelihood of success on appeal.

1

To start, the government and the opinions of Judges

Henderson and Walker try to distinguish the MSPB and NLRB

from the multimember agencies at issue in Humphrey’s

Executor and Wiener. But those efforts do not work.

The government casts the MSPB as exercising executive

authority because the MSPB “hear[s]” and “adjudicate[s]”

matters, is authorized to take “final action” on those matters,

“issue[s]” remedies, and orders “compliance” with its

17

decisions. Gov’t Stay Mot. in Harris 12 (quoting 5 U.S.C.

§ 1204(a)(1)–(2)).

True—the MSPB does do those things. But those are the

hallmarks of an adjudicative body. The War Claims

Commission was an “adjudicatory body[,]” and it issued final

and unreviewable decisions that ordered funds to be paid from

the Treasury Department’s War Claims Fund. Wiener, 357

U.S. at 354–356. The decisions of the MSPB and NLRB, more

modestly, can only be enforced by a federal court. See 5 U.S.C.

§§ 1204(a)(2), 7703 (MSPB); 29 U.S.C. § 160(e) (NLRB).

The government points out that the MSPB can invalidate

rules issued by the Office of Personnel Management. Gov’t

Stay Mot. in Harris 12 (citing 5 U.S.C. § 1204(f)). But the

MSPB can invalidate only those rules that are themselves

inherently unlawful because they would require employees to

violate the law by engaging in discriminatory, retaliatory, or

other impermissible conduct. 5 U.S.C. §§ 1204(f)(2), 2302(b).

Needless to say, that type of invalidation is an “exceedingly

rare occurrence,” Harris Decl. ¶ 31, and could not trench upon

any lawful exercise of the President’s duty to “faithfully

execute” the laws of the United States, U.S. CONST. Art. II, § 3.

And the government nowhere disclaims its ability to obtain

judicial review of such a decision. See generally 5 U.S.C.

§ 7703(d)(1).

The government also highlights that MSPB attorneys, as

opposed to lawyers from the Department of Justice, may

represent the Board in civil actions in the lower federal courts.

Gov’t Mot. in Harris 12 (citing 5 U.S.C. § 1204(i)). But that is

also true of the Federal Reserve Board, 12 U.S.C. § 248(p), and

the Securities Exchange Commission, whose removal

protections the Supreme Court took as given as part of the

constitutional remedy adopted in Free Enterprise, 15 U.S.C.

18

§§ 77t(b)–(c), 78u(c)–(e). Anyhow, independent litigating

authority is not uniquely executive in character. The Political

Branches have statutorily authorized the Senate Legal Counsel

and the General Counsel of the House to represent the Senate

and House, respectively, in court proceedings. 2 U.S.C.

§§ 288c, 5571(a).

Finally, Judge Walker claims that the MSPB wields

executive power because “it can force the President to work

with thousands of employees he doesn’t want to work with[.]”

J. Walker Op. 40–41. The assertion that the President could

fire every single employee in the Executive Branch, as opposed

to principal officers, is a breathtaking broadside on the very

existence of a civil service that not even the government

advances. And Judge Walker cites no authority for that

proposition, which is odd given that the only issue before us is

the likelihood of the government’s success on appeal on the

arguments it advances.

Anyhow, his point proves the opposite. Issuing an order

that an employee was unlawfully discharged is intrinsically

adjudicative. Federal courts often conclude that employment

discharges by the federal government were contrary to law and

order employees reinstated. See, e.g., Vitarelli v. Seaton, 359

U.S. 535, 546 (1959) (reversing lower courts and ordering

reinstatement of Department of Interior employee who was

fired without procedurally proper notice or hearing); Lander v.

Lujan, 888 F.2d 153, 158 (D.C. Cir. 1989) (affirming district

court order reinstating Bureau of Mines employee to position

he was demoted from in violation of Title VII); American

Postal Workers Union, AFL-CIO v. United States Postal Serv.,

830 F.2d 294, 312 (D.C. Cir. 1987) (finding Postal Worker

discharged in violation of the First Amendment was entitled to

reinstatement and back pay).

19

Judge Walker’s opinion also overlooks that the MSPB has

no legal authority to “force” its decisions on anybody as it has

no enforcement arm or sanctions to impose for noncompliance.

Only a federal court can do that. And even then, the decisions

only “force” the President to work with individuals whom the

President cannot legally fire under the anti-discrimination,

whistleblower-protection, and veterans-preference laws that he

has sworn to uphold. So just like the FTC, the MSPB’s charge

is “the enforcement of no policy except the policy of the law.”

Humphrey’s Executor, 295 U.S. at 624.

As for the NLRB, the government insists that the Board is

not “hermetically sealed” off from the General Counsel’s

enforcement functions. Gov’t Stay Mot. in Wilcox 16. In

particular, the government argues that the Board, not the

General Counsel, may seek injunctions against unfair labor

practices in federal court. Id. (citing 29 U.S.C. § 160(j)). My

colleagues’ opinions likewise note that the NLRB can seek

backpay against private parties in federal court. J. Walker Op.

33–34; J. Henderson Op. 4.

But the Board’s power to seek injunctions in federal court

mirrors the 1935 FTC’s power to “apply” to circuit courts for

“enforcement” of cease-and-desist orders. Humphrey’s

Executor, 295 U.S. at 620–621. In any event, the Board cannot

act until the General Counsel does. The Board may seek an

injunction only upon the “issuance of a complaint[,]” 29 U.S.C.

§ 160(j), which the General Counsel has “final authority” to

issue or not, id. § 153(d). As for backpay, such equitable relief

must be sought by the General Counsel who alone supervises

the attorneys representing the NLRB in federal court. Id.

Lastly, Judge Walker’s opinion says that having an

intrinsically adjudicatory function like the War Claims

Commission in Wiener does not count because the

20

Commission’s work was “temporary.” J. Walker Op. 40. The

opinion nowhere explains why the length of an agency’s

mandate matters constitutionally. If Congress established an

agency to run the military, gave its directors for-cause removal

protection, but limited its operation to two years, that agency

would trench on the President’s Article II authority far more

than the NLRB or MSPB ever could. In any event, if time

matters, Harris’s and Wilcox’s remaining tenures in office

would be shorter than those of the War Claims Commissioners.

See War Claims Act of 1948, Pub. L. No. 80-896, § 2(a), (c)–

(d), 62 Stat. 1240, 1241 (The War Claims Commissioners were

originally authorized to serve up to five-year terms).

In short, none of the government’s arguments or my

colleagues’ opinions distinguish the MSPB or NLRB in any

materially relevant way from the Supreme Court’s holdings in

Humphrey’s Executor and Wiener.

2

a

As their second tack, the government and my colleagues’

opinions take aim at Humphrey’s Executor. The government

says that decision has effectively been overruled and confined

to its facts because its conclusion about the nature of the FTC’s

executive power “has not withstood the test of time.” Gov’t

Stay Mot. in Harris 15 (quoting Seila Law, 591 U.S. at 216 n.2);

see also Gov’t Stay Mot. in Wilcox 14.

The Supreme Court expressly rejected this argument in

Morrison. See Morrison, 487 U.S. at 686–691, 689 n.28

(applying Humphrey’s Executor even though the “powers of

the FTC at the time of Humphrey’s Executor would at the

present time be considered ‘executive,’ at least to some

21

degree”). That ruling binds this court. Plus that argument has

nothing to say about the controlling force of Wiener, which

involved a predominantly adjudicatory body much more akin

to the NLRB and MSPB.

It is this court’s job to apply Supreme Court precedent, not

to cast it aside or to declare it on “jurisprudential life support.”

J. Walker Op. 26. If a precedent of the Supreme Court “has

direct application in a case”—as Humphrey’s Executor and

Wiener do here—“a lower court ‘should follow the case which

directly controls,’” leaving to the Supreme Court “‘the

prerogative of overruling its own decisions.’” Mallory v.

Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (quoting

Rodriguez de Quijas v. Shearson/American Express, Inc., 490

U.S. 477, 484 (1989)).

Importantly, that rule governs “even if the lower court

thinks the precedent is in tension with ‘some other line of

decisions.’” Mallory, 600 U.S. at 136 (quoting Rodriguez de

Quijas, 490 U.S. at 484); see also Agostini v. Felton, 521 U.S.

203, 237 (1997) (“We do not acknowledge, and we do not hold,

that other courts should conclude our more recent cases have,

by implication, overruled an earlier precedent.”); National

Security Archive v. CIA, 104 F.4th 267, 272 n.1 (D.C. Cir.

2024) (“This Court is charged with following case law that

directly controls a particular issue[.]”). 2

Yet “tension” is the most that the government and my

colleagues’ opinions can claim. The government frankly

admits it. At oral argument, the government, with admirable

2

See also Shea v. Kerry, 796 F.3d 42, 54 (D.C. Cir. 2015)

(quoting Agostini, 521 U.S. at 237); Sierra Club v. E.P.A., 322 F.3d

718, 725 (D.C. Cir. 2003) (quoting Rodriquez de Quijas, 490 U.S. at

484).

22

candor, acknowledged no less than four times that it believes

the constitutionality of removal protections for multimember

bodies is not “clear.” Oral Arg. Tr. 24:25; see id. at 10:24–11:5

(“[T]he Supreme Court has left the lower courts in something

of a tough spot[.]”); 84:16–23 (There is, “at a minimum, a very

substantial question” and “reasonable minds can differ” about

the scope of Humphrey’s Executor today.); 88:17–18

(“[T]here’s some uncertainty” in the wake of Collins.).

Judge Henderson agrees that it is “unclear” when the

Humphrey’s Executor rule for multimember boards applies, J.

Henderson Op. 1, and that “reasonable minds can—and often

do—disagree” about how to apply the Supreme Court’s

precedent, id. at 3.

The reason for that lack of clarity is obvious: The Supreme

Court has not overruled Humphrey’s Executor or Wiener.

Quite the opposite, it has expressly carved out multimember

independent boards from its recent holdings on the removal

power and has expressly left Humphrey’s Executor “in

place[.]” Seila Law, 591 U.S. at 215. That is why the

concurring opinion of Justices Thomas and Gorsuch in Seila

Law exists at all: They write to say that they would have gone

further than the Court and struck down Humphrey’s Executor.

Id. at 238–239 (Thomas, J., joined by Gorsuch, J., concurring

in part and dissenting in part). So Judge Walker cannot cite a

single Supreme Court case saying that the Court has effectively

overruled Humphrey’s Executor or confined that opinion to its

facts, never to be applied again. See J. Walker Op. 30.

Judge Walker’s opinion, instead, presumes to do the

Supreme Court’s job for it. After omitting what the Supreme

Court actually said about Humphrey’s Executor in Free

Enterprise, Seila Law, and Collins, Judge Walker discerns a

clarity that everyone else has missed, announcing that the

23

Supreme Court has imposed “a binding command on the lower

courts” not to extend Humphrey’s Executor to “any new

contexts,” so that this court “cannot extend Humphrey’s—not

even an inch.” J. Walker Op. 30.

The problem? The opinion never cites to Supreme Court

language for that “binding obligation,” nor does it quote or cite

anything for the proposed requirement that any multimember

board must be an “identical twin” to the FTC to be sustained.

That is because the Supreme Court has not said either thing.

Rather than take the Supreme Court at its word, Judge Walker’s

opinion prognosticates that the Supreme Court will in the

future invalidate all removal protections for all multimember

boards that exercise “any” executive power in any form. J.

Walker Op. 36.

But that is the very job the Supreme Court has forbidden us

to undertake. We are to apply controlling precedent, not play

jurisprudential weather forecasters. To do otherwise would be

to accuse the Supreme Court of not meaning what it said when

it repeatedly left Humphrey’s Executor in place, and of

engaging in a disingenuous bait-and-switch when seven

Justices openly invited Congress to repair the constitutional

flaw in the CFPB by reconstituting it as a multimember body.

Seila Law, 591 U.S. at 237 (Roberts, C.J., joined by Alito and

Kavanaugh, JJ., concurring in the judgment); id. at 298 (Kagan,

J., joined by Ginsburg, Breyer, and Sotomayor, JJ., concurring

in the judgment with respect to severability and dissenting in

part).

Getting out ahead of the Supreme Court that way is beyond

my pay grade. When the Supreme Court makes and expressly

preserves precedent, “we [should] take its assurances seriously.

If the Justices [were] just pulling our leg, let them say so.”

24

Sherman v. Community. Consol. Sch. Dist. 21 of Wheeling

Township, 980 F.2d 437, 448 (7th Cir. 1992) (Easterbrook, J.);

see also Illinois v. Ferriero, 60 F.4th 704, 718–719 (D.C. Cir.

2023) (“[C]arefully considered language of the Supreme Court,

even if technically dictum, generally must be treated as

authoritative.”) (citation omitted).

Staying in our lane is even more vital in deciding a motion

to stay. A stay pending appeal, like a preliminary injunction,

is meant to be a “stopgap measure[,]” made under “conditions

of grave uncertainty” and with the awareness that it may prove

to be “mistaken” once the merits are decided. Singh v. Berger,

56 F.4th 88, 95 (D.C. Cir. 2022) (citation omitted). It is not an

opportunity to effect a sea change in the law—especially one

that the Supreme Court itself has repeatedly forborne.

b

As if Supreme Court precedent was not enough to find that

the government is not likely to succeed in these appeals,

binding circuit precedent doubles down on it. Prior circuit

opinions are “of course binding on us under the law-of-the-

circuit doctrine.” Palmer v. FAA, 103 F.4th 798, 806 (D.C. Cir.

2024); Campaign Legal Ctr. v. 45Committee, Inc., 118 F.4th

378, 386 n.* (D.C. Cir. 2024) (“‘One three-judge panel’ of this

court ‘does not have the authority to overrule another three-

judge panel of the court. * * * That power may be exercised

only by the full court,’ either through an en banc decision or a

so-called Irons footnote.”) (quoting LaShawn A. v. Barry, 87

F.3d 1389, 1395 (D.C. Cir. 1996) (en banc)).

This court has repeatedly applied Humphrey’s Executor as

precedent, including as recently as the last two years. See Meta

Platforms, Inc. v. FTC, No. 24-5054, 2024 WL 1549732, at *2

(D.C. Cir. Mar. 29, 2024) (per curiam); Severino v. Biden, 71

25

F.4th 1038, 1047 (D.C. Cir. 2023); FEC v. NRA Political

Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (noting that

cases such as Humphrey’s Executor and Morrison confirmed

the constitutionality of the Federal Election Commission’s

structure). Yet both Judge Walker’s and Judge Henderson’s

opinions ignore that binding precedent.

Other circuits too have faithfully hewed to the Supreme

Court’s admonition not to get out over their jurisprudential skis

and have continued to apply Humphrey’s Executor. See

Consumers’ Research v. CPSC, 91 F.4th 342, 347, 352 (5th

Cir. 2024) (Humphrey’s Executor is “still-on-the-books

precedent” and “has not been overruled[.]”), cert. denied, 145

S. Ct. 414 (2024); Leachco, Inc. v. CPSC, 103 F.4th 748, 761–

762 (10th Cir. 2024) (“[T]he Supreme Court in Seila Law

clearly stated that Humphrey’s Executor remains binding

today.”); Magnetsafety.org v. CPSC, No. 22-9578, 2025 WL

665101, at *7 (10th Cir. Mar. 3, 2025) (“Humphrey’s Executor

remains binding today.”) (quoting Leachco, 103 F.4th at 761).

In sum, this court’s duty—especially at this early stay

stage—is to follow binding and dispositive Supreme Court and

circuit precedent in evaluating the government’s likelihood of

success. And the government has not shown any likelihood of

prevailing under Humphrey’s Executor and Wiener, as well as

circuit precedent. If the government thinks it has a likelihood

of success on certiorari to the Supreme Court, it can raise that

argument there. This court has no business getting ahead of

that Court in these appeals. And we certainly should not cast

off Supreme Court precedent, depart from circuit precedent,

and create a circuit conflict just to determine the government’s

eligibility for a stay that is meant only to maintain the status

quo.

26

E

Even if Supreme Court precedent did not dictate the answer

to the likelihood-of-success question, the government’s and my

colleagues’ efforts in their opinions to reduce Humphrey’s

Executor and Wiener to constitutional rubble are not likely to

succeed.

1

This court’s starting point is to presume that the Civil

Service Reform Act and the National Labor Relations Act are

constitutional. United States v. Davis, 588 U.S. 445, 463 n.6

(2019); Mississippi Commission on Environmental Quality v.

E.P.A., 790 F.3d 138, 182 (D.C. Cir. 2015). And with or

without that presumption, the statutory removal provisions

pass constitutional muster.

To start, the removal restrictions comport with the

Constitution’s text. Article I gives Congress the full authority

to create agencies and the officer positions to run those

agencies. U.S. CONST. Art. I, § 8, cl. 18 (“The Congress shall

have Power * * * To make all Laws which shall be necessary

and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution in the

Government of the United States, or in any Department or

Officer thereof.”). The Constitution also makes explicit that

Congress, and not just the President, has a role in staffing the

agencies and positions created by law. Under Article II’s

Appointments Clause, the President can appoint principal

officers only “by and with the Advice and Consent of the

Senate” and only as the legislature “shall * * * establish[] by

Law” those positions. Art. II, § 2, cl. 2. Congress also has

plenary power to vest the appointment of inferior officers “in

the President alone, in the Courts of Law, or in the Heads of

27

Departments.” Id. And, of course, it is Congress who pays,

with taxpayer dollars, for everyone employed in the Executive

Branch. Art. I, § 8, cl. 1.

Article II, for its part, says nothing about removal power.

But it does vest in the President “[t]he executive Power” and

charge the President with “tak[ing] Care that the Laws be

faithfully executed[.]” U.S. CONST. Art. II, §§ 1, 3. Read

together, the Constitution invests both the President and

Congress with coordinate responsibilities to build an effective

and efficient government that serves the Nation’s important

interests.

History confirms that Congress may, as part of its design

and staffing decisions, condition the President’s removal

authority when necessary to accomplish vital national goals.

Congressional authority to enact for-cause removal restrictions

traces back to the time of the Constitution’s adoption. When

Congress reenacted the Northwest Ordinance, it transferred the

Confederation Congress’s removal authority over territorial

officials to the President, An Act to provide for the Government

of the Territory Northwest of the river Ohio, ch. 8, § 1, 1 Stat.

50, 53 (Aug. 7, 1789), but left intact for-cause removal

protections for territorial judges, id. at 51. 3

Then, in 1790, Congress created the Sinking Fund

Commission (the Federal Reserve’s early predecessor) to

perform economically critical executive and policy functions.

Congress directed that two of its five directors would be

officials whom the President could not remove. An Act making

3

Territorial judges do not constitutionally enjoy tenure

protection because they are not Article III judges. American

Insurance Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828).

28

provision for the reduction of the Public Debt, ch. 47, § 2, 1

Stat. 186 (1790). As for the First and Second Banks of the

United States, Congress provided the President no removal

authority over members of the First Bank, An act to

incorporate the subscribers in the Bank of the United States,

ch. 10, § 4, 1 Stat. 191, 192–193 (1791), and gave the President

control over only five out of twenty-five members of the

Second Bank, An Act to incorporate the subscribers to the

Bank of the United States, ch. 44, § 8, 3 Stat. 266, 269 (1816). 4

Next, in 1855, Congress created the Court of Claims, the

judges of which held office “during good behaviour,” An Act

to establish a Court for the Investigation of Claims against the

United States, ch. 22, § 1, 10 Stat. 612 (1855), even though they

were not Article III judges, see Williams v. United States, 289

U.S. 553, 563 (1933).

The list goes on. The statute creating the Comptroller of

the Currency required the President to gain Senate approval

before removing the Comptroller, An Act to provide a national

Currency, ch. 58, § 1, 12 Stat. 665–666 (1863), and its

successor statute, while vesting removal authority in the

President, still required the President to “communicate[]” his

reason “to the Senate” before exercising that authority, An Act

4

Judge Walker’s opinion makes much of the Decision of 1789.

See J. Walker Op. 9–10. But the only thing decided in 1789 was that

the President need not always consult with the Senate before

removing a principal officer, a proposition that no one contests today.

E.g., Myers v. United States, 272 U.S. 52, 241 (1926) (Brandeis, J.,

dissenting). Rather than focusing on short snippets from legislative

debates and law review articles, one can simply observe that the same

Congress that apparently decided against removal restrictions also

decided to create removal restrictions, just not for every principal

officer.

29

to provide a National Currency, ch. 106, § 1, 13 Stat. 100

(1864).

Then, in 1887, Congress created the Interstate Commerce

Commission to regulate railroads. Neither President Cleveland

nor a single member of Congress raised a constitutional

objection to the provision allowing the removal of

Commissioners only “for inefficiency, neglect of duty, or

malfeasance in office[.]” An act to regulate commerce, ch.

104, § 11, 24 Stat. 383 (1887).

Founding-era Supreme Court precedent documents the

practice as well. In Marbury v. Madison, 5 U.S. (1 Cranch)

137 (1803), the Supreme Court, through Chief Justice

Marshall, recognized that some executive officers are not

removable by the President:

Where an officer is removable at the will of the

executive, the circumstance which completes his

appointment is of no concern; because the act is at any

time revocable; and the commission may be arrested,

if still in the office. But when the officer is not

removable at the will of the executive, the

appointment is not revocable, and cannot be annulled.

It has conferred legal rights which cannot be resumed.

Id. at 162; see also id. at 172–173 (Marbury “has been

appointed to an office, from which he is not removable, at the

will of the executive; and being so appointed, he has a right to

the commission which the secretary has received from the

president for his use.”). 5

5

To be sure, the Supreme Court in dicta has dismissed this

discussion in Marbury as “ill-considered dicta.” Seila Law, 591 U.S.

30

None of this is surprising given the Constitution’s textual

checking and balancing, and general opposition to the over-

concentration of power in a single Branch. As Justice Scalia

summarized when discussing the modern counterparts of these

early agencies, “removal restrictions have been generally

regarded as lawful for so-called ‘independent regulatory

agencies,’ such as the Federal Trade Commission, * * * the

Interstate Commerce Commission, * * *, and the Consumer

Product Safety Commission * * *, which engage substantially

in what has been called the ‘quasi-legislative activity’ of

rulemaking[.]” Morrison, 487 U.S. at 724–725 (Scalia, J.,

dissenting). Such “‘long settled and established practice is a

consideration of great weight in a proper interpretation of

constitutional provisions’ regulating the relationship between

Congress and the President.” NLRB v. Noel Canning, 573 U.S.

513, 524 (2014) (quoting The Pocket Veto Case, 279 U.S. 655,

689 (1929)).

at 227. But it seems to me to be wisdom and knowledge gained from

firsthand experience at the time of the founding, and so cannot be

brushed away so easily. John Marshall participated in the Virginia

ratification debates and served in the legislative and executive

branches before becoming Chief Justice. See Supreme Court

Historical Society, Life Story: John Marshall (2025),

https://perma.cc/JHA4-EPTH. He was joined by Justice Paterson, a

delegate to the Constitutional Convention and a Senator in 1789,

when the debate over removal took place. See Supreme Court

Historical Society, William Paterson (2025),

https://perma.cc/TL6M-7Y9M. In searching for the Constitution’s

original meaning, it is hard to understand the preference of Judge

Walker’s opinion for Myers—written 138 years after the

Constitution’s ratification—to Marbury, written by jurists who

helped to write and to ratify the Constitution.

31

That is the historical grounding for the Supreme Court’s

decisions in Humphrey’s Executor and Wiener. And the

MSPB’s and NLRB’s for-cause removal protections fit that

historical practice.

a

Start with the MSPB. In 1883, Congress created the Civil

Service Commission—the MSPB’s predecessor entity—to

address the serious problem of a federal workforce beset by

political patronage, political coercion, and instability.

Presidents and their subordinates could reward their supporters

with taxpayer-funded government jobs, but often had to fire

those already in office to make room for their favorites. The

result was administrative dysfunction. As one commentator

put it, “[a]t present there is no organization save that of

corruption[;] * * * no system save that of chaos; no test of

integrity save that of partisanship; no test of qualification save

that of intrigue.” Ari Hoogenboom, The Pendleton Act and the

Civil Service, 64 AM. HIST. REV. 301, 301 (1959) (quoting

Julius Bing, Our Civil Service, PUTNAM’S MAG. 232, 236 (Aug.

1868)); see id. at 302 (“Contemporaries noted the cloud of fear

that hovered over government workers, especially after a

change of administration. It was impossible for an esprit de

corps or for loyalty to office or agency to develop in an

atmosphere of nervous tension. * * * A civil servant was loyal

primarily to his patron—the local political who procured him

his job.”).

Concerns about this patronage system were a longstanding

concern. As Mark Twain observed: “Unless you can get the

ear of a Senator, or a Congressman, or a Chief of a Bureau or

Department, and persuade him to use his ‘influence’ in your

behalf, you cannot get an employment of the most trivial nature

in Washington. Mere merit, fitness and capability[] are useless

32

baggage to you without ‘influence.’” MARK TWAIN &

CHARLES WARNER, THE GILDED AGE 223 (1873); see also

Mark Twain, Special Dispatch, N.Y. Times (Oct. 2, 1876) (“We

hope and expect to sever [the civil] service as utterly from

politics as is the naval and military service, and we hope to

make it as respectable, too. We hope to make worth and

capacity the sole requirements of the civil service[.]”).

Governmental malfunction was so disabling that President

Garfield devoted a portion of his 1881 inaugural address to the

problem. He emphasized the need for tenure protections,

explaining that the civil service could “never be placed on a

satisfactory basis until it is regulated by law[s]” that “prescribe

the grounds upon which removals shall be made during the

terms for which incumbents have been appointed.” President

James A. Garfield, Inaugural Address (March 4, 1881),

https://perma.cc/B5DM-T738. President Garfield’s

assassination a few months later by a disappointed job seeker

transformed concerns about the patronage system into a

national crisis. Alan Gephardt, The Federal Civil Service and

the Death of President James A. Garfield, National Park

Service (2012), https://perma.cc/3QY2-LEUT.

Two years later, “strong discontent with the corruption and

inefficiency of the patronage system of public employment

eventuated in the Pendleton Act, [ch. 27, 22 Stat. 403 (1883)].”

Elrod v. Burns, 427 U.S. 347, 354 (1976). That Act created a

Civil Service Commission to eliminate the “patronage system”

of governance and create a professional civil service dedicated

only to working for the American people. Id. In that way,

“Congress, the Executive, and the country” all agreed “that

partisan political activities by federal employees must be

limited if the Government is to operate effectively and fairly[.]”

United States Civil Service Comm’n v. National Association of

Letter Carriers, AFL-CIO, 413 U.S. 548, 564 (1973).

33

The MSPB’s raison d’etre is to effectuate this

governmental commitment to prioritizing merit over partisan

loyalty. Housing all employment matters in the Civil Service

Commission had proven unworkable as the Commission had

accumulated “conflicting responsibilities” in its roles as “a

manager, rulemaker, prosecutor and judge.” President Jimmy

Carter, Fed. Civ. Serv. Reform Msg. to Cong. (March 2,

1978), https://perma.cc/2URA-FJRR. Its slow pace of

decision-making had also confounded efforts to enforce civil

service laws for both employees and employing agencies. See

United States v. Fausto, 484 U.S. 439, 458 (1988) (Stevens, J.,

dissenting).

To address the problem, the 1978 Civil Service Reform Act

created the Office of Personnel Management to perform

“personnel administration[,]” the Office of Special Counsel to

“investigate and prosecute[,]” and the MSPB to “be the

adjudicatory arm of the new personnel system.” President

Carter, Fed. Civ. Serv. Reform Msg.; see Civil Service Reform

Act of 1978, Pub. L. No. 95-454, § 3, 92 Stat. 1111, 1112 (The

Act will provide “the people of the United States with a

competent, honest, and productive Federal work force” that is

governed by “merit system principles and free from prohibited

personnel practices[.]”).

The Reform Act provided MSPB members with some

removal protection to ensure both employees and agencies that

decisions would be made based on the facts and law, rather than

political allegiance or fear of retribution. The MSPB also hears

claims by whistleblowers exposing waste, fraud, and abuse

within federal agencies. Removal protections offer

whistleblowers assurance that their claims will be heard

impartially and objectively, free from retributive political

pressure. For “it is quite evident that one who holds his office

34

only during the pleasure of another cannot be depended upon

to maintain an attitude of independence against the latter’s

will.” Humphrey’s Executor, 295 U.S. at 629.

Said another way, if the Constitution requires that

Presidents be allowed to fire members of the Merit Systems

Protection Board for any partisan, policy, or personal reason,

then Congress and the taxpayers cannot have a professional

civil service based on merit. Nor could the MSPB provide the

“requirement of neutrality in adjudicative proceedings” that

“safeguards the * * * central concerns of procedural due

process[.]” Marshall v. Jericco, 446 U.S. 238, 242 (1980); see

Schweiker v. McClure, 456 U.S. 188, 195 (1982) (“[D]ue

process demands impartiality on the part of those who function

in judicial or quasi-judicial capacities.”).

At the same time, by housing the adjudicatory authority in

a multim

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