# Cathy Harris v. Scott Bessent

> Court of Appeals for the D.C. Circuit · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10834575

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 28, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10834575

## How later opinions describe it (automated extraction)

- affirming district court order reinstating Bureau of Mines employee to position he was demoted from in violation of Title VII
- discussing the importance of consistent policymaking to protect and encourage reliance interests

## Opinion text

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10834575. Public record. Not legal advice.