Gwynne A. Wilcox v. Donald J. Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 16, 2025 Decided December 5, 2025

No. 25-5037

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

Appeals from the United States District Court

for the District of Columbia

(No. 1:25-cv-00412)

Harry Graver, Attorney, U.S. Department of Justice,

argued the cause for appellants. On the briefs were Eric D.

McArthur, Deputy Assistant Attorney General, and Mark R.

Freeman, Michael S. Raab, Joshua M. Salzman, Laura E.

Myron, and Daniel Aguilar, Attorneys.

2

Martin Akerman, pro se, was on the brief for amicus curiae

Martin Akerman in support of appellants.

James Uthmeier, Attorney General, Office of the Attorney

General for the State of Florida, Jeffrey Paul Desousa, Acting

Solicitor General, and Nathan A. Forrester, Chief Deputy

Solicitor General, were on the brief for amici curiae State of

Florida, et al. in support of appellants.

Nathaniel A. Zelinsky argued the cause for appellee Cathy

A. Harris. With him on the brief were Michael J. Kator,

Jeremy D. Wright, Kerrie D. Riggs, Linda M. Correia, Neal

Kumar Katyal, Kristina Alekseyeva, and Ezra P. Louvis.

Steven A. Hirsch was on the brief for amici curiae Law

Professors John C. Coates, et al. in support of appellee.

Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.

Frazelle were on the brief for amicus curiae Constitutional

Accountability Center in support of appellee.

Nicolas A. Sansone and Allison M. Zieve were on the brief

for amicus curiae Public Citizen in support of appellee.

Anthony Schoenberg, Alexis Loeb, John Ugai, and Raven

Quesenberry were on the brief for amici curiae 253 Members

of Congress in support of appellee.

Elizabeth C. Lockwood and Kathryn M. Ali were on the

brief for amici curiae Former Board Members and General

Counsel of the Merit Systems Protection Board in support of

appellee.

3

Anne E. Lopez, Attorney General, Office of the Attorney

General for the State of Hawaii, Kaliko’onalani D. Fernandes,

Solicitor General, Kristin K. Mayes, Attorney General, Office

of the Attorney General for the State of Arizona, Philip J.

Weiser, Attorney General, Office of the Attorney General for

the State of Colorado, Rob Bonta, Attorney General, Office of

the Attorney General for the State of California, William Tong,

Attorney General, Office of the Attorney General for the State

of Connecticut, Kathleen Jennings, Attorney General, Office

of the Attorney General for the State of Delaware, Aaron M.

Frey, Attorney General, Office of the Attorney General for the

State of Maine, Andrea Joy Campbell, Attorney General,

Office of the Attorney General for the Commonwealth of

Massachusetts, Keith Ellison, Attorney General, Office of the

Attorney General for the State of Minnesota, Matthew J.

Platkin, Attorney General, Office of the Attorney General for

the State of New Jersey, Letitia James, Attorney General,

Office of the Attorney General for the State of New York,

Kwame Raoul, Attorney General, Office of the Attorney

General for the State of Illinois, Anthony G. Brown, Attorney

General, Office of the Attorney General for the State of

Maryland, Dana Nessel, Attorney General, Office of the

Attorney General for the State of Michigan, Aaron D. Ford,

Attorney General, Office of the Attorney General for the State

of Nevada, Raul Torrez, Attorney General, Office of the

Attorney General for the State of New Mexico, Jeff Jackson,

Attorney General, Office of the Attorney General for the State

of North Carolina, Dan Rayfield, Attorney General, Office of

the Attorney General for the State of Oregon, Charity R. Clark,

Attorney General, Office of the Attorney General for the State

of Vermont, Joshua L. Kaul, Attorney General, Office of the

Attorney General for the State of Wisconsin, Peter F. Neronha,

Attorney General, Office of the Attorney General for the State

of Rhode Island, Nicholas W. Brown, Attorney General, Office

of the Attorney General for the State of Washington, and Brian

4

L. Schwalb, Attorney General, Office of the Attorney General

for the District of Columbia, were on the brief for amici curiae

State of Hawaii, et al. in support of appellee.

William Pittard and Daniel Csigirinszkij were on the brief

for amicus curiae Professor Peter Conti-Brown in support of

appellee.

Joseph M. Sellers was on the brief for amici curiae Patrick

J. Borchers, et al. in support of appellee.

Thad M. Guyer was on the brief for amici curiae

Government Accountability Project, et al. in support of

appellee.

Joseph Carson, pro se, was on the brief for amicus curiae

Joseph Carson, PE in support of appellee.

No. 25-5057

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

5

Appeal from the United States District Court

for the District of Columbia

(No. 1:25-cv-00334)

Harry Graver, Attorney, U.S. Department of Justice,

argued the cause for appellants. On the briefs were Eric D.

McArthur, Deputy Assistant Attorney General, and Mark R.

Freeman, Michael S. Raab, Joshua M. Salzman, Laura E.

Myron, and Daniel Aguilar, Attorneys.

Daniel Z. Epstein and R. Trent McCotter were on the brief

for amicus curiae Separation of Powers Clinic in support of

appellants.

Michael Pepson was on the brief for amicus curiae

Americans for Prosperity Foundation in support of appellants.

Jonathan Skrmetti, Attorney General and Reporter, Office

of the Attorney General for the State of Tennessee, and

Whitney Hermandorfer, Director of Strategic Litigation at the

time the brief was filed, were on the brief for amicus curiae

State of Tennessee in support of appellants.

Michael H. McGinley, Brian A. Kulp, Jordan L. Von

Bokern, and Steven A. Engel were on the brief for amicus

curiae the Chamber of Commerce of the United States of

America in support of appellants.

James Uthmeier, Attorney General, Office of the Attorney

General for the State of Florida, Jeffrey Paul Desousa, Acting

Solicitor General, and Nathan A. Forrester, Chief Deputy

6

Solicitor General, were on the brief for amici curiae State of

Florida, et al. in support of appellants.

Kevin F. King, Matthew J. Glover, Eli Nachmany, and

Brad J. Grisenti were on the brief for amicus curiae Coalition

for a Democratic Workplace in support of appellants.

William J. Olson and Jeremiah L. Morgan were on the

brief for amicus curiae America’s Future, et al. in support of

appellants.

Deepak Gupta argued the cause for appellee Gwynne A.

Wilcox. With him on the brief were Jennifer D. Bennett,

Matthew W. H. Wessler, Gregory A. Beck, and Alisa C. Philo.

Dennis Fan was on the brief for amici curiae Former

Members of the National Labor Relations Board in support of

appellee.

Steven A. Hirsch was on the brief for amici curiae Law

Professors John C. Coates, et al. in support of appellee.

Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.

Frazelle were on the brief for amicus curiae Constitutional

Accountability Center in support of appellee.

Nicolas A. Sansone and Allison M. Zieve were on the brief

for amicus curiae Public Citizen in support of appellee.

Anthony Schoenberg, Alexis Loeb, John Ugai, and Raven

Quesenberry were on the brief for amici curiae 253 Members

of Congress in support of appellee.

Keith Ellison, Attorney General, Office of the Attorney

General for the State of Minnesota, Liz Kramer, Solicitor

7

General, Kwame Raoul, Attorney General, Office of the

Attorney General for the State of Illinois, Jane Elinor Notz,

Solicitor General, Alex Hemmer, Deputy Solicitor General,

Kris Mayes, Attorney General, Office of the Attorney General

for the State of Arizona, Philip J. Weiser, Attorney General,

Office of the Attorney General for the State of Colorado,

Kathleen Jennings, Attorney General, Office of the Attorney

General for the State of Delaware, Rob Bonta, Attorney

General, Office of the Attorney General for the State of

California, William Tong, Attorney General, Office of the

Attorney General for the State of Connecticut, Brian L.

Schwalb, Attorney General, Office of the Attorney General for

the District of Columbia, Anne E. Lopez, Attorney General,

Office of the Attorney General for the State of Hawaii, Anthony

G. Brown, Attorney General, Office of the Attorney General

for the State of Maryland, Dana Nessel, Attorney General,

Office of the Attorney General for the State of Michigan,

Matthew J. Platkin, Attorney General, Office of the Attorney

General for the State of New Jersey, Letitia James, Attorney

General, Office of the Attorney General for the State of New

York, Dan Rayfield, Attorney General, Office of the Attorney

General for the State of Oregon, Aaron M. Frey, Attorney

General, Office of the Attorney General for the State of Maine,

Andrea Joy Campbell, Attorney General, Office of the

Attorney General for the Commonwealth of Massachusetts,

Aaron D. Ford, Attorney General, Office of the Attorney

General for the State of Nevada, Raul Torrez, Attorney

General, Office of the Attorney General for the State of New

Mexico, Jeff Jackson, Attorney General, Office of the Attorney

General for the State of North Carolina, Peter F. Neronha,

Attorney General, Office of the Attorney General for the State

of Rhode Island, Charity R. Clark, Attorney General, Office of

the Attorney General for the State of Vermont, Joshua L. Kaul,

Attorney General, Office of the Attorney General for the State

of Wisconsin, and Nicholas W. Brown, Attorney General,

8

Office of the Attorney General for the State of Washington,

were on the brief for amici curiae State of Minnesota, et al. in

support of appellee.

Matthew Ginsburg, Harold Craig Becker, and Maneesh

Sharma were on the brief for amicus curiae the American

Federation of Labor and Congress of Industrial Organizations

(AFL-CIO) in support of appellee.

William Pittard and Daniel Csigirinszkij were on the brief

for amicus curiae Professor Peter Conti-Brown in support of

appellee.

Joseph M. Sellers was on the brief for amici curiae Patrick

J. Borchers, et al. in support of appellee.

Richard F. Griffin and Faaris Akremi were on the brief for

amicus curiae Professor Jed H. Shugerman in support of

appellee.

Before: KATSAS, WALKER, and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

Dissenting opinion filed by Circuit Judge PAN.

KATSAS, Circuit Judge: These appeals present the

question whether Congress may constitutionally prohibit the

President from removing members of the National Labor

Relations Board and Merit Systems Protection Board without

cause. The district courts upheld the constitutionality of

statutory removal protections for members of these boards.

We reverse. Under Humphrey’s Executor v. United States,

295 U.S. 602 (1935), Congress may restrict the President’s

ability to remove principal officers who wield only quasi-

9

legislative or quasi-judicial powers. But under Seila Law LLC

v. Consumer Financial Protection Bureau, 591 U.S. 197

(2020), Congress may not restrict the President’s ability to

remove principal officers who wield substantial executive

power. As explained below, the NLRB and MSPB wield

substantial powers that are both executive in nature and

different from the powers that Humphrey’s Executor deemed

to be merely quasi-legislative or quasi-judicial. So, Congress

cannot restrict the President’s ability to remove NLRB or

MSPB members.

I

The National Labor Relations Board and Merit Systems

Protection Board are multimember agencies with wide-ranging

statutory responsibilities and with members protected by

statute from presidential removal without cause.

A

The National Labor Relations Act constitutes the NLRB

as an agency of five members appointed by the President with

the advice and consent of the Senate. 29 U.S.C. § 153(a). The

members serve five-year terms. Id. The NLRA purports to

prohibit the President from removing a member except “for

neglect of duty or malfeasance in office.” Id.

Congress empowered the NLRB to prevent any “unfair

labor practice” affecting interstate commerce. 29 U.S.C.

§ 160(a). The NLRB conducts formal adjudications to resolve

unfair-labor-practice complaints presented to it. Id. § 160(b).

If it finds an unfair labor practice, the NLRB must issue a

cease-and-desist order. Id. § 160(c). It also may order

affirmative relief, including reinstatement and backpay, to

“effectuate the policies” of the NLRA. Id. Acting under these

remedial authorities, the NLRB has claimed the power to award

10

compensatory and consequential-like damages. See Thryv,

Inc., 372 NLRB No. 22, at *9–10 (Dec. 13, 2022), vacated in

part on other grounds, 102 F.4th 727 (5th Cir. 2024). But see

NLRB v. Starbucks Corp., 125 F.4th 78, 96–97 (3d Cir. 2024)

(concluding such relief is ultra vires). In some instances, the

NLRB may find speech to constitute an unfair labor practice.

See 29 U.S.C. § 158(a)(1); Cadillac of Naperville, Inc. v.

NLRB, 14 F.4th 703, 721–22 (D.C. Cir. 2021) (Katsas, J.,

concurring in part and dissenting in part). In others, it may

compose and order company speech as a remedy for unfair

labor practices. See HTH Corp. v. NLRB, 823 F.3d 668, 675–

78 (D.C. Cir. 2016).

The NLRB may litigate in federal court to prevent unfair

labor practices. Upon the filing of an administrative complaint,

it may seek interim injunctive relief in district court. 29 U.S.C.

§ 160(j). And upon finding an unfair labor practice, the NLRB

may petition an appropriate court of appeals to enforce its

order. Id. § 160(e). In conducting this litigation, the NLRB

acts through its own counsel, rather than that of the Justice

Department. Id. § 154(a).

Beyond its powers to prevent unfair labor practices, the

NLRB has substantial authority over matters involving union

elections. Within or across employers, it must determine the

“unit appropriate” for collective bargaining. 29 U.S.C.

§ 159(b). For such units, the NLRB also supervises elections

to certify or decertify unions as the employees’ bargaining

representatives. See id. § 159(c)–(e).

Lastly, the NLRB may “from time to time … make,

amend, and rescind … such rules and regulations as may be

11

necessary to carry out the provisions of” the NLRA, including

the provisions outlined above. 29 U.S.C. § 156.1

B

The Civil Service Reform Act constitutes the MSPB as an

agency of three members appointed by the President with the

advice and consent of the Senate. 5 U.S.C. § 1201. The

members serve seven-year terms. Id. § 1202(a). The CSRA

purports to prohibit the President from removing a member

except for “inefficiency, neglect of duty, or malfeasance in

office.” Id. § 1202(d).

The MSPB primarily manages disputes between federal

employees and their employing agencies. Among other things,

the MSPB may adjudicate all matters within its jurisdiction and

may “take final action on any such matter.” 5 U.S.C.

§ 1204(a)(1). It may “order any Federal agency or employee

to comply with any” of its orders or decisions, and it may

“enforce compliance” with them. Id. § 1204(a)(2). To do so,

it may “order that any employee charged with complying with

such [an] order,” except for Senate-confirmed presidential

appointees, “shall not be entitled to receive payment for service

as an employee during any period that the order has not been

complied with.” Id. § 1204(e)(2)(A).

1

Separate from the NLRB, Congress has created its office of

General Counsel. That officer is appointed by the President, with the

advice and consent of the Senate, to a four-year term. 29 U.S.C.

§ 153(d). Unlike NLRB members, the General Counsel has no

statutory removal protection. He has “final authority” to investigate,

charge, and prosecute unfair-labor-practice complaints before the

NLRB. Id. He also supervises the NLRB’s regional offices, and the

Board may delegate additional powers to him. Id.

12

The MSPB’s jurisdiction covers a wide range of federal

employment disputes. The MSPB often reviews actions

already taken by the employing agency. For example, federal

employees may “appeal” to the MSPB disciplinary actions

taken by an employer to promote “efficiency of the [civil]

service.” 5 U.S.C. § 7513(a), (d). Employees also may seek

“corrective action” from the MSPB for any “prohibited

personnel practice.” Id. § 1221(a). Such practices include acts

of discrimination made unlawful by four different statutes,

granting unauthorized preferences, coercing political activity,

retaliation for various protected activities, improper influence,

deception, and obstruction. Id. § 2302(b). The MSPB also has

jurisdiction to review employment actions alleged to violate

statutory protections for military servicemembers or veterans.

See id. §§ 1204(a)(1), 3330a(d)(1); 38 U.S.C. § 4324.

Sometimes, the MSPB resolves disputes in the first

instance. Many such disputes involve claims presented to it by

the Office of the Special Counsel. In these cases, the MSPB

may order corrective action for prohibited personnel practices,

5 U.S.C. § 1214, or for violations of other statutes enforced by

the Special Counsel, id. § 1216. The MSPB also may impose

discipline for any of these violations. Id. § 1215(a)(3). Finally,

the MSPB resolves employment disputes involving

Administrative Law Judges, who cannot be removed,

suspended, or demoted without “good cause” as found by the

MSPB. Id. § 7521.

In its various adjudications, the MSPB may award a wide

range of interim and final relief. Upon request by the Special

Counsel, any MSPB member may “order a stay of any

personnel action” reasonably believed to constitute a

prohibited personnel practice. 5 U.S.C. § 1214(b)(1)(A). Such

stays may last for up to 45 days initially, and the MSPB may

extend them for “any period” it considers appropriate. Id.

13

§ 1214(b)(1)(B)(i). To remedy unwarranted discipline

imposed by an employing agency, the MSPB may order

affirmative relief including reinstatement and backpay. See

Elgin v. Dep’t of Treasury, 567 U.S. 1, 6 (2012). For prohibited

personnel practices, it may order “corrective action” that

includes reinstatement, backpay, and compensatory damages.

Id. §§ 1214(g), 1221(g)(1). In cases where it imposes

discipline, the MSPB may order removal, demotion, debarment

from federal employment for up to five years, and penalties of

up to $1,000, or “any combination” of these sanctions. Id.

§ 1215(a)(3)(A).

The MSPB has its own litigating authority. Except in the

Supreme Court, its attorneys “may appear for the Board, and

represent the Board, in any civil action brought in connection

with any function carried out by the Board.” 5 U.S.C.

§ 1204(i). When aggrieved employees seek judicial review of

its decisions, the MSPB (rather than the employing agency or

official) is sometimes the respondent. See id. § 7703(a)(2).

Specifically, it is the respondent when the employee challenges

an adverse procedural ruling, Spruill v. MSPB, 978 F.2d 679,

684 (Fed. Cir. 1992), or when the MSPB adjudicates a dispute

in the first instance, Costello v. MSPB, 182 F.3d 1372, 1381

(Fed. Cir. 1999).

The MSPB has three overlapping grants of rulemaking

authority. It may promulgate “such regulations as may be

necessary for the performance of its functions.” 5 U.S.C.

§ 1204(h). It may promulgate “regulations to carry out the

purpose” of conducting administrative appeals. Id. § 7701(k).

And it may promulgate regulations “for the purpose of section

7521,” which governs adverse employment actions against

ALJs. Id. § 1305. The MSPB also may sua sponte review

regulations promulgated by the Office of Personnel

Management. Id. § 1204(f)(1). It may declare such regulations

14

invalid, on their face or as implemented, to the extent they

purport to require prohibited personnel practices. Id.

§ 1204(f)(2). And it may “require any agency” to “cease

compliance” with such regulations. Id. § 1204(f)(4)(A).

II

The President removed Gwynne Wilcox from the NLRB

and Cathy Harris from the MSPB. In defense of those actions,

the government does not contend that Wilcox or Harris

engaged in any conduct that would support for-cause removal

under the relevant statutory restrictions. Instead, it argues that

the restrictions are unconstitutional.

Wilcox and Harris sued to challenge their removals. The

district courts held that the statutory removal protections are

constitutional under Humphrey’s Executor; they declared that

Wilcox and Harris continue to hold their respective offices; and

they enjoined the government from interfering with the

individuals’ ability to function as board members. Wilcox v.

Trump, 775 F. Supp. 3d 215 (D.D.C. 2025); Harris v. Bessent,

775 F. Supp. 3d 164 (D.D.C. 2025). The government appealed

and sought interim stays pending appeal. A motions panel of

this Court granted the stays, Harris v. Bessent, No. 25-5037,

2025 WL 980278 (D.C. Cir. Mar. 28, 2025), but the full Court

vacated that decision, Harris v. Bessent, No. 25-5037, 2025

WL 1021435 (D.C. Cir. Apr. 7, 2025) (en banc) (per curiam).

The Supreme Court then stayed the district courts’ orders

pending the resolution of these appeals and any ensuing

petitions for certiorari. Trump v. Wilcox, 145 S. Ct. 1415

(2025) (per curiam). In doing so, the Court found it likely “that

both the NLRB and MSPB exercise considerable executive

power,” which it said would make the removal restrictions

unconstitutional. Id. at 1415.

15

III

A

Article II of the Constitution vests “[t]he executive Power”

of the United States “in a President,” U.S. Const., Art. II, § 1,

cl. 1, and requires him to “take Care that the Laws be faithfully

executed,” id. § 3. In Myers v. United States, 272 U.S. 52

(1926), the Supreme Court held that the Vesting and Take Care

Clauses prevent Congress from restricting the President’s

ability to remove government officers who wield significant

executive power on his behalf. See id. at 117–18, 163–64. The

Court invalidated a statute requiring the Senate to provide

advice and consent to effectuate the President’s removal of a

first-class postmaster. See id. at 107, 176. In later cases, the

Court applied Myers to invalidate statutory restrictions on the

President’s ability to remove various principal officers. See

Collins v. Yellen, 594 U.S. 220 (2021) (Director of Federal

Housing Finance Agency); Seila Law, 591 U.S. 197 (Director

of CFPB); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,

561 U.S. 477 (2010) (members of PCAOB). More recently,

the Court noted that because the President’s “exclusive power

of removal in executive agencies” is “conclusive and

preclusive,” Congress may not restrict it. Trump v. United

States, 603 U.S. 593, 609 (2024) (quoting Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 638 & n.4 (1952) (Jackson,

J., concurring)).

A different line of precedent qualifies these cases. In

Humphrey’s Executor, the Supreme Court upheld the

constitutionality of a statute barring the President from

removing members of the Federal Trade Commission absent

“inefficiency, neglect of duty, or malfeasance in office.”

15 U.S.C. § 41. The Court acknowledged Myers’s holding that

Congress cannot restrict the President’s ability to remove

16

“purely executive officers.” Humphrey’s Ex’r, 295 U.S. at

627–28. But it concluded that Myers does not govern the

removal of an officer “who exercises no part of the executive

power vested by the Constitution in the President.” Id. at 628.

And it characterized the FTC’s powers not as executive, but as

“quasi-legislative or quasi-judicial.” Id. In Wiener v. United

States, 357 U.S. 349 (1958), the Court applied Humphrey’s

Executor to infer and uphold a cause requirement for removing

members of the War Claims Commission, a tribunal that

adjudicated claims under a statutory scheme for compensating

certain Americans held by the Axis powers during World War

II. Id. at 349–50, 355–56. Other precedents have upheld cause

requirements for the removal of certain inferior officers.

Morrison v. Olson, 487 U.S. 654 (1988); United States v.

Perkins, 116 U.S. 483 (1886).

In Seila Law, the Court read Humphrey’s Executor

narrowly and expressly declined to extend it. According to the

Court, “text, first principles, the First Congress’s decision in

1789 [regarding removal of executive officers], Myers, and

Free Enterprise Fund all establish that the President’s removal

power is the rule, not the exception.” 591 U.S. at 228.

Moreover, Humphrey’s Executor and Morrison reflect “two

exceptions—one for multimember expert agencies that do not

wield substantial executive power, and one for inferior officers

with limited duties and no policymaking or administrative

authority.” Id. at 218. Furthermore, these exceptions

“represent what up to now have been the outermost

constitutional limits of permissible congressional restrictions

on the President’s removal power.” Id. (quoting PHH Corp. v.

CFPB, 881 F.3d 75, 196 (D.C. Cir. 2018) (en banc)

(Kavanaugh, J., dissenting)). As it had done previously, the

Court declined to “extend” Humphrey’s Executor to a “new

situation.” Id. at 220 (quoting Free Enter. Fund, 561 U.S. at

483).

17

Seila Law held that the Myers rule—not the Humphrey’s

Executor exception—governs removal of the CFPB Director.

To distinguish Humphrey’s Executor, the Court identified three

significant executive powers vested in the CFPB. First, the

CFPB can “promulgate binding rules” implementing the

statutes that it administers. 591 U.S. at 218. Second, it can

“issue final decisions awarding legal and equitable relief in

administrative adjudications.” Id. at 219. Third, it can “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.

B

These appeals turn on whether Humphrey’s Executor

applies to the NLRB and MSPB. At first glance, that question

seems to turn on whether these agencies exercise any

significant executive power within the meaning of the Vesting

Clause, which would bring this case within the rule of Myers

and Seila Law; or whether the agencies exercise only quasi-

legislative and quasi-judicial powers, which Humphrey’s

Executor deemed to fall outside the President’s executive

power under Article II. See 295 U.S. at 627–28. But after

Humphrey’s Executor was decided, two related developments

in separation-of-powers jurisprudence made it all but

impossible to distinguish executive power from quasi-

legislative or quasi-judicial power.

First, the Supreme Court has broadened its understanding

of what powers count as executive. In Buckley v. Valeo, 424

U.S. 1 (1976) (per curiam), the Court held that the Federal

Election Commission’s “enforcement power, exemplified by

its discretionary power to seek judicial relief,” is an executive

power entrusted to the President through the Take Care Clause.

See id. at 138. In Bowsher v. Synar, 478 U.S. 714 (1986), the

18

Court held that the power to interpret and apply a statute

requiring certain budget cuts is executive. See id. at 733

(“Interpreting a law enacted by Congress to implement the

legislative mandate is the very essence of ‘execution’ of the

law.”). In Freytag v. Commissioner, 501 U.S. 868 (1991),

Justice Scalia explained at length that “there is nothing

‘inherently judicial’ about ‘adjudication,’” which Article II

agencies perform routinely. Id. at 909 (concurring in part and

concurring in the judgment); see id. at 909–12. And in City of

Arlington v. FCC, 569 U.S. 290 (2013), the Court explained

that rulemaking and administrative adjudication “take

‘legislative’ and ‘judicial’ forms, but they are exercises of—

indeed, under our constitutional structure they must be

exercises of—the ‘executive Power.’” Id. at 304 n.4 (quoting

Article II Vesting Clause). With enforcement, rulemaking, and

administrative adjudication all classed as executive powers,

what is left of the assertedly discrete categories of quasi-

legislative or quasi-judicial powers? In sum, “[t]he Court’s

conclusion [in Humphrey’s Executor] that the FTC did not

exercise executive power has not withstood the test of time.”

Seila Law, 591 U.S. at 216 n.2 (citing City of Arlington, 569

U.S. at 304 n.4). To the contrary, it is “hard to dispute that the

powers of the FTC at the time of Humphrey’s Executor would

at the present time be considered ‘executive,’ at least to some

degree.” Id. (quoting Morrison, 487 U.S. at 690 n.28).

Second, the Supreme Court increasingly has stressed that

there are only three kinds of constitutional powers, and two of

them are not delegable. “Our Constitution divided the ‘powers

of the new Federal Government into three defined categories,

Legislative, Executive, and Judicial.’” Free Enter. Fund, 561

U.S. at 483 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).

Only Congress itself may exercise the legislative power. See

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001)

(Article I “permits no delegation”). And only life-tenured

19

judges may exercise the “judicial Power of the United States.”

Stern v. Marshall, 564 U.S. 462, 483–84 (2011) (quoting U.S.

Const. Art. III, § 1); see also Mistretta v. United States, 488

U.S. 361, 425 (1989) (Scalia, J., dissenting) (“A judge may not

leave the decision to his law clerk, or to a master.”). So by

process of elimination, if agencies may receive neither

legislative nor judicial powers, what is left for them other than

some portion of the executive power?

These considerations suggest that very little remains of

Humphrey’s Executor. Perhaps its most plausible application

is to purely adjudicatory bodies like the War Claims

Commission at issue in Wiener. But under today’s separation-

of-powers jurisprudence, even those bodies exercise the

President’s executive power. See, e.g., United States v.

Arthrex, Inc., 594 U.S. 1, 17 (2021) (Administrative Patent

Judges); Kuretski v. Comm’r, 755 F.3d 929, 932 (D.C. Cir.

2014) (Tax Court judges). Recall that Seila Law limited

Humphrey’s Executor to entities that “do not wield substantial

executive power.” 591 U.S. at 218. So maybe agencies with

any “substantial” power—quasi-judicial, quasi-legislative, or

otherwise—fall outside Humphrey’s Executor because that

power is and must be executive. See Consumers’ Rsch. v.

CPSC, 98 F.4th 646, 650–57 (5th Cir. 2024) (Oldham, J.,

dissenting from denial of rehearing en banc). Maybe

Humphrey’s Executor thus governs only agencies with purely

advisory functions—like, say, the United States Commission

on Civil Rights, see Dellinger v. Bessent, No. 25-5028, 2025

WL 559669, at *14 (D.C. Cir. Feb. 15, 2025) (Katsas, J.,

dissenting). And maybe the Supreme Court, which is now

considering whether to overrule Humphrey’s Executor, will

soon hold as much. See Stay Order, Trump v. Slaughter, No.

25-332 (U.S. Sept. 22, 2025).

20

All of that said, we are reluctant to decide these appeals

along those lines. Of course, we must apply Humphrey’s

Executor as best we can, unless and until the Supreme Court

overrules it. See Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477, 484 (1989). Moreover, despite

rejecting the reasoning of Humphrey’s Executor, the Supreme

Court has twice expressly declined to overrule it. See Seila

Law, 591 U.S. at 228; Free Enter. Fund, 561 U.S. at 483. And

Seila Law acknowledged that Humphrey’s Executor had

upheld removal restrictions for an agency with powers that

“would at the present time be considered executive.” 591 U.S.

at 216 n.2 (quoting Morrison, 487 U.S. at 690 n.28). Given

these considerations, maybe Congress still may restrict

removal if the board at issue has only those powers that

Humphrey’s Executor deemed to be quasi-legislative or quasi-

judicial, even if those powers are now recognized as executive.

Fortunately, we need not resolve all these tensions. As we

explain below, the NLRB and MSPB exercise significant

executive powers, which is enough to trigger the general rule

of Myers and Seila Law. Moreover, many of those powers

exceed ones that Humphrey’s Executor deemed to be quasi-

legislative or quasi-judicial, which makes this case fall outside

any exception based on that decision.

C

So what powers did Humphrey’s Executor deem to be

quasi-legislative or quasi-judicial? That case involved powers

vested in the FTC by the Federal Trade Commission Act as

originally enacted in 1914. Section 5 of that Act prohibited

“unfair methods of competition in commerce.” Act of Sept. 26,

1914, ch. 311, § 5, 38 Stat. 717, 719–20 (codified as amended

at 15 U.S.C. § 45). It authorized the Commission to adjudicate

complaints alleging unfair methods of competition, to issue

21

cease-and-desist orders, and to seek judicial enforcement of

those orders. Id. Section 6 of the Act authorized the

Commission to make and file reports with other governmental

entities, including Congress. Id. at 721–22 (codified as

amended at 15 U.S.C. § 46). Section 7 authorized the

Commission to act “as a master in chancery” in pending

antitrust actions. Id. at 722 (codified at 15 U.S.C. § 47). For

our purposes, “what matters is the set of powers the Court

considered as the basis for its decision” in Humphrey’s

Executor. Seila Law, 591 U.S. at 219 n.4.

1

In distinguishing Myers, the Court deemed only one of the

FTC’s powers to be quasi-legislative: making reports for

Congress. See Humphrey’s Ex’r, 295 U.S. at 628 (“In making

investigations and reports … for the information of Congress

under section 6, in aid of the legislative power, it acts as a

legislative agency.”). That power is “investigative and

informative”—one that “Congress might delegate to one of its

own committees.” Buckley, 424 U.S. at 137.

More interesting is a power that Humphrey’s Executor did

not describe as quasi-legislative. Section 6(g) of the FTC Act

authorized the Commission “to make rules and regulations for

the purpose of carrying out the provisions of this Act.” 38 Stat.

at 722. Yet Humphrey’s Executor did not mention that

provision, much less characterize it as conferring on the FTC

the quasi-legislative power to engage in substantive

rulemaking. This was hardly surprising because “the agency

itself did not assert the power to promulgate substantive rules

until 1962 and indeed indicated intermittently that it lacked

such a power.” Nat’l Petrol. Refiners Ass’n v. FTC, 482 F.2d

672, 693 (D.C. Cir. 1973). Before Humphrey’s Executor was

decided, the Commission had expressly disclaimed the power

22

to promulgate substantive rules governing primary conduct, as

opposed to procedural rules governing the conduct of

administrative adjudication under section 5. See id. at 693

n.27; Annual Report of the Federal Trade Commission for the

Fiscal Year Ended June 30, 1922 at 36 (“One of the most

common mistakes is to suppose that the commission can

issue … regulations unconnected with any proceeding before

it.”). For this reason, the Supreme Court cited the CFPB’s

power “to promulgate binding [substantive] rules” as one

important power not considered in Humphrey’s Executor—and

one key reason why Humphrey’s Executor does not apply to

the CFPB. Seila Law, 591 U.S. at 218.

2

Humphrey’s Executor conceived of “quasi-judicial”

power as assisting the Article III courts or, at most, engaging

in a restrained species of administrative adjudication modeled

on how Article III judges resolve cases or controversies.

In distinguishing Myers, the Supreme Court expressly

described only one of the FTC’s powers as “quasi-judicial”—

its section 7 power to assist the courts. See 295 U.S. at 628.

That provision allowed a federal district court, if it found that

equitable remedies were warranted in an antitrust case, to

“refer” the case “to the commission, as a master in chancery, to

ascertain and report an appropriate form of decree.” 38 Stat. at

722. In that instance, the Commission would prepare and file

a report, which the court could “adopt or reject” as it chose. Id.

As Humphrey’s Executor perceived it, “quasi-judicial” power

is thus merely the power to “act[] as an agency of the

judiciary.” 295 U.S. at 628. Today, we might liken this power

to that of a magistrate judge or a special master. See 28 U.S.C.

§ 636 (magistrate judges); Fed. R. Civ. P. 53 (special masters).

23

More generally, the Supreme Court also referenced the

FTC’s power to conduct administrative adjudications under

section 5, which it described as “filling in and administering

the details” regarding a “general” statutory prohibition of

unfair methods of competition. See 295 U.S. at 628.

According to the Court, that enterprise emphatically did not

involve any discretionary policy judgments. Instead, the FTC

was a “nonpartisan” body required to “act with entire

impartiality.” Id. at 624. And it was “charged with the

enforcement of no policy except the policy of the law.” Id. In

Wiener, the Court similarly described administrative

adjudication by the War Claims Commission: Claims before it

“were to be ‘adjudicated according to law,’ that is, on the merits

of each claim, supported by evidence and governing legal

considerations.” 357 U.S. at 355. These descriptions resemble

Justice Scalia’s minimalist account of adjudication in

Freytag—agencies or courts “determine facts, apply a rule of

law to those facts, and thus arrive at a decision.” 501 U.S. at

909 (concurring in part and concurring in the judgment). These

descriptions also conjure up an enduring image of how judges

are supposed to adjudicate, as umpires fairly applying set rules

to call balls and strikes.

Precedents contemporaneous with Humphrey’s Executor

confirm this restrained conception of FTC administrative

adjudication. For one thing, the Supreme Court repeatedly had

held that the meaning of “unfair methods of competition,”

although open-ended, was “for the courts, not the commission,

ultimately to determine as [a] matter of law.” FTC v. Gratz,

253 U.S. 421, 427 (1920); see FTC v. Curtis Pub. Co., 260 U.S.

568, 579–80 (1923) (following Gratz). Moreover, courts

discerned the meaning of that phrase not through broad or

policy-laden pronouncements, but by “the gradual process of

judicial inclusion and exclusion,” consistent with traditional

common-law adjudication. FTC v. Raladam Co., 283 U.S. 643,

24

648 (1931) (cleaned up). Some of these precedents eventually

were disapproved. See FTC v. Brown Shoe Co., 384 U.S. 316,

320–21 (1966) (disapproving Gratz). But in 1935, insofar as

FTC administrative adjudication was deemed a quasi-judicial

power, it was at most the power to resolve disputes like judges.

* * * *

In sum, Humphrey’s Executor laid down specific

conceptions of what counts as “quasi-legislative” or “quasi-

judicial” power. The former includes only legislative research

functions such as investigating, writing reports, and making

recommendations to Congress. The latter includes only the

power to serve as a trial master or to act as a judge-like

adjudicator without policymaking authority. As Seila Law

noted, neither category encompasses the powers to promulgate

substantive rules or to impose civil fines. See 591 U.S. at 218–

19. And although Humphrey’s Executor did not separately

analyze available remedies, Seila Law stressed that the FTC in

1935 could only assist courts or enter cease-and-desist orders,

as opposed to awarding damages or affirmative equitable relief.

See id.

IV

The powers of the NLRB and MSPB substantially exceed

the circumscribed administrative powers that Humphrey’s

Executor deemed to be quasi-legislative or quasi-judicial.

A

Congress has vested the NLRB with several executive

powers beyond the ones addressed in Humphrey’s Executor.

First, the NLRB possesses “broad rulemaking authority.”

Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 613 (1991). Section 6

25

of the NLRA empowers the agency to promulgate “such rules

and regulations as may be necessary to carry out the

provisions” of the statute. 29 U.S.C. § 156. In American

Hospital Association, the Supreme Court held that this

authority covers not only rules establishing unfair labor

practices under section 8, but also “industry-wide rule[s]

delineating … appropriate bargaining units” under section 9.

499 U.S. at 611. Invoking that power, the NLRB has

promulgated rules governing collective bargaining in the health

care industry. 29 C.F.R. § 103.30. As Seila Law made clear,

the power to “promulgate binding rules fleshing out” major

federal statutes exceeds the powers that Humphrey’s Executor

deemed to be quasi-legislative or quasi-judicial. See 591 U.S.

at 218. Needless to say, it is also a quintessential executive

power under current constitutional standards.

Wilcox objects that the NLRB has not often engaged in

substantive rulemaking. See 29 C.F.R. §§ 103.1–3; Nat’l Ass’n

of Mfrs. v. NLRB, 717 F.3d 947, 949 (D.C. Cir. 2013). But that

is irrelevant to our inquiry. When evaluating the

constitutionality of removal restrictions, courts consider the

“authority” that an agency “possesses,” not the rigor with

which the power is exercised. Seila Law, 591 U.S. at 218. So,

“an agency’s voluntary self-denial” of its rulemaking power

“has no bearing” on our constitutional analysis. Am. Trucking

Ass’ns, 531 U.S. at 473.

Second, the NLRB conducts administrative adjudications

that are nothing like the model of adjudication that Humphrey’s

Executor treated as quasi-judicial. Recall that model: A

“nonpartisan” body of experts acts “with entire impartiality” to

undertake “the enforcement of no policy except the policy of

the law.” Humphrey’s Ex’r, 295 U.S. at 624. And courts

decide what the governing statutory standard means, through a

neutral process of case-by-case adjudication. See Raladam,

26

283 U.S. at 648; Gratz, 253 U.S. at 427. In other words, courts

would decide what constitutes an “unfair method of

competition” or an “unfair labor practice,” using familiar

interpretive tools such as statutory text, structure, canons,

history, and precedent. This fairly describes the functioning of

purely adjudicatory bodies like the War Claims Commission,

which was charged with nothing more than adjudicating claims

“according to law.” 357 U.S. at 355. But it does not fairly

describe adjudication conducted by agencies with substantive

rulemaking power, which the Administrative Procedure Act

defines as including the power to “prescribe law or policy.”

See 5 U.S.C. § 551(4)–(5). For those agencies, the Supreme

Court has held that “adjudication is a generally permissible

mode of law-making and policymaking,” precisely because the

agency has been “delegated the power to make law and policy

through rulemaking.” Martin v. OSHRC, 499 U.S. 144, 154

(1991); see SEC v. Chenery Corp., 332 U.S. 194, 202–03

(1947) (Chenery II).

The NLRB conducts the latter kind of adjudications. It is

tasked with “developing and applying national labor policy.”

NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990).

So, it may “announc[e] new principles in an adjudicative

proceeding.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 294

(1974); see Consol. Freightways v. NLRB, 892 F.2d 1052, 1056

(D.C. Cir. 1989) (NLRB adjudication “enunciated a new rule,”

which “the Board has the authority to do”). The NLRB does

this routinely, see, e.g., NLRB v. J. Weingarten, Inc., 420 U.S.

251, 260–67 (1975); NLRB v. Burns Int’l Sec. Servs., Inc., 406

U.S. 272, 284–85 (1972), creating a bevy of requirements that

are akin to “statutory” rules or “one[s] established by

regulation,” Republic Aviation Corp. v. NLRB, 324 U.S. 793,

804–05 (1945).

27

Moreover, policy considerations drive NLRB

adjudications. The Supreme Court has contrasted the “narrow

confines of law” for the courts with the “spacious domain of

policy” for the NLRB. Phelps Dodge Corp. v. NLRB, 313 U.S.

177, 194 (1941). Likewise, this Court has held that the NLRB

may “explicate why national labor policy requires” a given

rule. Retail Clerks Int’l Ass’n Loc. No. 455 v. NLRB, 510 F.2d

802, 807 (D.C. Cir. 1975). The NLRB routinely invokes

“policy” considerations not only to create rules by

adjudication, but also to overrule them. In re Lamons Gasket

Co., 357 NLRB 739, 739 (2011); In re IBM Corp., 341 NLRB

1288, 1290 (2004); see Valley Hosp. Med. Ctr., Inc. v. NLRB,

100 F.4th 994, 1003 (9th Cir. 2024) (O’Scannlain, J., specially

concurring) (NLRB “frequently changes its mind, seesawing

back and forth between statutory interpretations depending on

its political composition, leaving workers, employers, and

unions in the lurch”). On one recent occasion, the NLRB

overruled itself for the fifth time, and this Court, barely

mentioning any statutory provisions, upheld the agency’s latest

position as reasonably explained and thus not arbitrary. See

Hosp. Menonita de Guayama, Inc. v. NLRB, 94 F.4th 1, 16

(D.C. Cir. 2024) (Katsas, J., concurring), GVR, 145 S. Ct. 982

(2024). Perhaps the NLRA will be somewhat more

constraining now that Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024), has overruled Chevron U.S.A. Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984). But

it would blink reality to suppose that Loper Bright will

eliminate the NLRB’s ability to conduct policymaking through

adjudication under Chenery II. Whatever the virtues of that

modern species of administrative adjudication, it cannot fairly

be described as approximating how Article III judges decide

cases, or as resting on “no policy except the policy of the law.”

Humphrey’s Ex’r, 295 U.S. at 624. And it plainly involves the

exercise of substantial executive power. See City of Arlington,

569 U.S. at 304 n.4.

28

Third, the NLRB may award substantially broader

remedies than the FTC could in 1935. At that time, the FTC,

upon finding an unfair method of competition, could issue only

a cease-and-desist order. See Humphrey’s Ex’r, 295 U.S. at

620–21. Such orders impose only a “negative restriction.”

Alberty v. FTC, 182 F.2d 36, 39 (D.C. Cir. 1950). The NLRB,

in contrast, may award various forms of affirmative relief.

Upon finding an unfair labor practice, it may issue not only a

cease-and-desist order, but also one “requiring” the offending

employer or union “to take such affirmative action including

reinstatement of employees with or without back pay, as will

effectuate the policies of” the NLRA. 29 U.S.C. § 160(c). This

may include the power to award compensatory damages. See

Thryv, Inc., 372 NLRB No. 22, at *9–10. And it sometimes

includes the power to compel employers to read NLRB-

composed admissions of liability, see Advancepierre Foods,

Inc. v. NLRB, 966 F.3d 813, 820–21 (D.C. Cir. 2020), a remedy

that Judge Williams likened to the practices of Joseph Stalin

and Mao Zedong, see HTH Corp., 823 F.3d at 677. Whatever

the merits of that comparison, the NLRB’s remedial authority

substantially exceeds that of the FTC in 1935. This

consideration also further distinguishes Humphrey’s Executor.

See Seila Law, 591 U.S. at 219.

Fourth, the NLRB has broader litigating authority than the

FTC did in 1935. Each agency may petition courts of appeals

to enforce final administrative orders. See 29 U.S.C. § 160(e)

(NLRB); 38 Stat. at 719–20 (codified as amended at 15 U.S.C.

§ 45) (FTC). But as noted above, NLRB remedial orders may

be much broader than those of the FTC in 1935. Moreover, the

NLRB has litigating authority to seek interim relief in district

courts. 29 U.S.C. § 160(j). In contrast, to obtain any judicial

relief besides enforcement of a final cease-and-desist order, the

FTC in 1935 would have needed to ask the Attorney General

to seek mandamus on its behalf. See 38 Stat. at 722 (codified

29

as amended at 15 U.S.C. § 49); FTC v. Claire Furnace Co., 274

U.S. 160, 173–74 (1927); Space Expl. Techs. Corp. v. NLRB,

151 F.4th 761, 776 n.76 (5th Cir. 2025). The NLRB’s greater

authority to litigate on behalf of the United States both further

distinguishes Humphrey’s Executor, see Seila Law, 591 U.S. at

218–19, and reflects a greater degree of executive power, see

Buckley, 424 U.S. at 138–40; In re Aiken County, 725 F.3d 255,

264 n.9 (D.C. Cir. 2013) (opinion of Kavanaugh, J.) (“civil

enforcement decisions brought by the Federal Government are

presumptively an exclusive Executive power”).

Wilcox objects that NLRB litigation is conducted by its

General Counsel, an executive officer removable at-will by the

President. But while the General Counsel has “final authority”

to prosecute unfair-labor-practice complaints before the

NLRB, 29 U.S.C. § 153(d); see NLRB v. United Food & Com.

Workers Union, Loc. 23, 484 U.S. 112, 118–19 (1987), the

NLRA gives the Board itself control over litigation in court, 29

U.S.C. § 160(e), (j). The General Counsel conducts that

litigation pursuant to a delegation from the Board under section

3(d), which permits the NLRB to assign to the General Counsel

“such other duties as the Board may prescribe.” Id. § 153(d).

Under the terms of that delegation, the General Counsel

conducts litigation “in full accordance with the directions of the

Board.” Authority and Assigned Responsibilities of General

Counsel of National Labor Relations Board § I.B, 20 Fed. Reg.

2,175, 2,175 (Apr. 6, 1955).

Finally, the NLRB exercises substantial executive power

in administering section 9 of the NLRA, which governs the

determination of appropriate units for collective bargaining and

the conduct of union elections. 29 U.S.C. § 159. Wilcox

objects that elections are supervised primarily by the NLRB’s

regional offices, which in turn are supervised by the General

Counsel. See id. § 153(d). Yet the NLRA clearly gives the

30

Board itself, not the General Counsel, final authority over

section 9 administration. See id. § 159(b) (“The Board shall

decide in each case … the unit appropriate for the purposes of

collective bargaining ….”); id. § 159(c) (“the Board shall

investigate” petitions to conduct a union election). Indeed, the

Board’s most prominent substantive rule to date involved not

an elaboration of unfair labor practices, but a determination of

appropriate bargaining units in the health care industry. See 29

C.F.R. § 103.30.

Because the NLRB’s rulemaking, adjudicatory, remedial,

enforcement, and election-administration powers are not solely

quasi-legislative or quasi-judicial, the agency falls well outside

the Humphrey’s Executor exception.

B

The MSPB likewise has more executive powers than ones

that Humphrey’s Executor deemed to be quasi-legislative or

quasi-judicial.

Start with rulemaking. The CSRA empowers the MSPB

to promulgate regulations “for the performance of its

functions,” 5 U.S.C. § 1204(h), and “for the purpose of section

7521,” id. § 1305. Section 7521 prohibits the “removal” of

ALJs without a prior MSPB determination of good cause. Id.

§ 7521(a), (b)(1). In Tunik v. MSPB, 407 F.3d 1326 (Fed. Cir.

2005), the Federal Circuit held these grants of rulemaking

power authorize the MSPB to decide, with the force and effect

of law, what constitutes a prohibited “removal.” Id. at 1345.

In other words, they permit the MSPB to define by regulation

what primary conduct section 7521 prohibits, not simply to

prescribe rules for the adjudication of disputes under that

provision. To be sure, the MSPB’s rulemaking authority with

respect to section 7521 does not rival the broad rulemaking

authority of the NLRB, and the contours of its other rulemaking

31

authorities are unclear. Nonetheless, the existence of at least

some substantive rulemaking power counts as a distinction of

Humphrey’s Executor and as executive power under Article II.

See Seila Law, 591 U.S. at 218.

As for adjudication, the MSPB may be less aggressive than

the NLRB in naked appeals to shifting policy preferences, but

its adjudicatory powers still exceed what Humphrey’s Executor

deemed to be quasi-judicial. This is true on at least three

different dimensions—finality, breadth of jurisdiction, and

breadth of remedial authority.

Finality. The power to “unilaterally issue final decisions”

is a significant executive power that was not present in

Humphrey’s Executor. See Seila Law, 591 U.S. at 219. In

1935, an FTC cease-and-desist order remained ineffective

unless and until the agency persuaded a court of appeals to

enforce it. FTC v. Klesner, 280 U.S. 19, 22 (1929); Claire

Furnace, 274 U.S. at 170. In contrast, the MSPB may “take

final action on any” matter “within the jurisdiction of the

Board,” 5 U.S.C. § 1204(a)(1), and also may “order any

Federal agency or employee to comply” with any of its orders,

id. § 1204(a)(2). Aggrieved employees may obtain judicial

review of final MSPB decisions, but the decisions remain

effective unless and until a court of appeals sets them aside.

See id. § 7703.

Breadth of jurisdiction. In 1935, the FTC was a

specialized tribunal. At that time, section 5 of the FTC Act was

limited to addressing “unfair methods of competition.” See 38

Stat. at 719; cf. 15 U.S.C. § 45(a)(1) (now also addressing

“unfair or deceptive acts or practices”). So, the FTC was

largely directed towards antitrust enforcement, as reflected in

its role as a “master in chancery” for antitrust cases.

Humphrey’s Ex’r, 295 U.S. at 628. In contrast, the MSPB is

32

more a jack-of-all-trades. In determining prohibited personnel

practices, it must administer portions of Title VII, the Age

Discrimination in Employment Act, the Fair Labor Standards

Act, the Rehabilitation Act, and the Whistleblower Protection

Act. 5 U.S.C. § 2302(b)(1), (8). And those five statutes

encompass only two of 14 categories of personnel practices

that the CSRA prohibits and that the MSPB must consider. Id.

§ 2302(b). The MSPB also must administer the Uniformed

Services Employment and Reemployment Rights Act and the

Veterans Employment Opportunities Act. See id.

§§ 1204(a)(1), 3330a(d)(1); 38 U.S.C. § 4324. It must

administer the Hatch Act, the Freedom of Information Act, and

various other statutes within the prosecutorial authority of the

Special Counsel. 5 U.S.C. § 1216(a). Finally, it must decide

whether employing agencies have meted out appropriate

discipline. Id. § 7513(d). To do that, the MSPB makes its own

“discretionary judgment,” which “is by no means” a mere legal

or factual inquiry. Douglas v. Veterans Admin., 5 M.S.P.B.

313, 325–26 (1981). Instead, it involves application of a non-

exclusive, twelve-factor balancing test that considers, among

other things, the nature of the offense, the employee’s work and

disciplinary record, the potential for rehabilitation, mitigating

circumstances, and the adequacy of alternative sanctions. See

Conor v. Dep’t of Veterans Affs., 8 F.4th 1319, 1324 (Fed. Cir.

2021) (citing Douglas, 5 M.S.P.B. at 332). According to the

MSPB, this searching inquiry is “considerably broader” than

one that courts would undertake. Douglas, 5 M.S.P.B. at 327.

Thus, it cannot plausibly be described as “quasi-judicial.”

Likewise, it cannot fairly be characterized as involving “no

policy except the policy of the law.” Humphrey’s Ex’r, 295

U.S. at 624.

Breadth of remedial authority. When it finds a legal

violation, the MSPB can do far more than simply order the

offending agency to cease and desist. For unwarranted

33

employee discipline, the MSPB may order relief “including

reinstatement, backpay, and attorney’s fees.” Elgin, 567 U.S.

at 6. For prohibited personnel practices, it may order corrective

action that includes reinstatement, backpay, compensatory and

consequential damages, medical and other costs, travel

expenses, attorney’s fees, expert witness fees, and interest.

5 U.S.C. §§ 1214(g), 1221(g)(1). In cases where it imposes

discipline, the MSPB may order removal, demotion, debarment

from federal employment for up to five years, suspension,

reprimand, civil penalties of up to $1,000, or “any

combination” of these sanctions. Id. § 1215(a)(3)(A). And for

violation of its own orders, the MSPB also may order the salary

of an offending official to be withheld. Id. § 1204(e)(2)(A).

All of this sharply distinguishes Humphrey’s Executor. The

power to award “legal and equitable relief in administrative

adjudications” is an executive power that was not at issue there.

See Seila Law, 591 U.S. at 219. Moreover, if the power to

“seek daunting monetary penalties” in court is also such a

power, see id., then so too is the power to impose such penalties

unilaterally.

Unlike the FTC in 1935, the MSPB also may award

interim relief in some circumstances—and may do so on a

wholesale basis. Upon request by the Special Counsel, any

MSPB member may “order a stay of any personnel action” that

she reasonably believes to constitute a prohibited personnel

practice. 5 U.S.C. § 1214(b)(1)(A). Recently, Harris herself

invoked this authority to reinstate nearly 6,000 laid-off

employees pending further administrative proceedings. Order

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

No. CB-1208-25-0020-U-1 (MSPB Mar. 5, 2025),

https://perma.cc/3F45-PKG5. That too far exceeds the FTC’s

remedial authority in 1935.

34

Harris objects that we should not consider the MSPB’s

salary-withholding power because the statute granting it is

unconstitutional. This argument addresses only one of many

remedial powers that were not present in Humphrey’s

Executor. In any event, the argument fails on its own terms.

Harris contends that withholding a salary requires involvement

of the Comptroller General, who is a legislative official. She

invokes Bowsher, which held that Congress could not vest the

Comptroller General with the executive power to decide what

budget cuts a particular statute required. See 478 U.S. at 733–

34. The argument correctly assumes that the power to withhold

the salary of a government official is executive. But the

Comptroller General does not exercise this power. “[T]he

Board may order” that the offending employee “shall not be

entitled to receive payment for service as an employee” during

the period of non-compliance. 5 U.S.C. § 1204(e)(2)(A). The

MSPB must “certify” its order to the Comptroller General, who

is in no way authorized to review it. Id. So, unlike the statute

at issue in Bowsher, the CSRA does not give the Comptroller

General any discretion to bind the Executive Branch.

Finally, consider litigating authority, another executive

power not addressed in Humphrey’s Executor. The MSPB’s

power to appear “in any civil action brought in connection with

any function carried out by the Board,” 5 U.S.C. § 1204(i),

contemplates MSPB control of any district-court litigation

brought by or against the agency. And the MSPB sometimes

is the proper respondent when its orders are challenged in a

court of appeals. See Spruill, 978 F.2d at 684; Costello, 182

F.3d at 1381. That too cuts against the MSPB’s position here.

Purely adjudicatory agencies—ones designed to be “an

independent adjudicator” with no policymaking authority—are

generally not proper parties to defend their decisions on review,

just as district judges are generally not proper parties to defend

their decisions on appeal. Oil Chem. & Atomic Workers Int’l

35

Union v. OSHRC, 671 F.2d 643, 651–52 (D.C. Cir. 1982); see

Hinson v. NTSB, 57 F.3d 1144, 1147 n.1 (D.C. Cir. 1995).

In sum, the MSPB has at least some substantive

rulemaking power; it administers a host of wide-ranging

federal statutes; it awards various kinds of affirmative,

compensatory, and punitive relief; and it litigates in court on its

own behalf. Taken together, these powers well exceed the

powers deemed to be quasi-legislative or quasi-judicial in

Humphrey’s Executor and the powers vested in the War Claims

Commission. For these reasons, Congress may not restrict the

President’s ability to remove MSPB members.

V

The constitutional problem in these cases arises from two

features of each agency: (1) the agency has been vested with

significant executive power that cannot be characterized as

quasi-legislative or quasi-judicial, and (2) Congress has

restricted the President’s ability to remove its members.

Wilcox and Harris urge us to solve the constitutional problem

by stripping away agency powers, rather than by declining to

enforce the removal restrictions.

We reject that proposal. When the Supreme Court

encounters a statute that unconstitutionally insulates an

executive officer from at-will removal, it has typically

responded by disregarding the removal restriction. See Myers,

272 U.S. at 176; Free Enter. Fund, 561 U.S. at 508–10; Seila

Law, 591 U.S. at 232–38. Our Circuit has done likewise.

Dellinger v. Bessent, No. 25-5052, 2025 WL 717383, at *1

(D.C. Cir. Mar. 5, 2025) (per curiam). Following that well-

worn path, we hold that the appropriate resolution here is to

disregard the statutory removal restrictions for NLRB and

36

MSPB members, not to blue-pencil provisions from among the

full panoply of the executive powers of each agency.2

VI

We close by flagging three issues not resolved here.

First, we do not decide whether Congress may restrict the

President’s ability to remove officers with solely adjudicatory

functions. Our analysis above has distinguished the court-like

adjudication of bodies such as the War Claims Commission

from the Chenery II-like adjudication of agencies vested with

both adjudicatory and policymaking responsibilities. And we

have shown that the powers vested in the NLRB and MSPB

significantly exceed those vested in the FTC in 1935 and those

vested in the War Claims Commission. We express no opinion

regarding other agencies that may plausibly be described as

purely adjudicatory.

Second, despite multiple amicus briefs focused on this

point, we do not address whether Congress may restrict the

President’s ability to remove members of the Board of

Governors of the Federal Reserve System. Granting a stay in

this case, the Supreme Court noted that there is a “distinct

historical tradition” regarding the treatment of congressionally

chartered banks, which may bear on Congress’s ability to

restrict the removal of their officials. Wilcox, 145 S. Ct. at

2

The Supreme Court took a different approach in Bowsher.

After concluding that Congress had unconstitutionally conferred

executive power on a legislative officer removable only by Congress,

the Court responded by stripping the officer of that power. 478 U.S.

at 734–36. But this merely implemented a statutory “fallback”

provision setting forth how the law at issue should operate if one of

its provisions was held unconstitutional. See id. at 735. The NLRA

and the CSRA contain no such provision.

37

1415; see also An Act to incorporate the subscribers to the

Bank of the United States, ch. 10, § 5, 1 Stat. 191, 193 (1791)

(directors of the First Bank of the United States were appointed

and removed “by the stockholders”). We have no occasion

here to address the scope or import of that tradition.

Third, because we hold that the President permissibly

removed Wilcox and Harris, we do not consider whether

wrongfully removed principal officers may obtain declaratory,

equitable, or mandatory relief against the President or other

government officials.

VII

For the reasons set forth above, we reverse the judgments

of the district courts.

So ordered.

PAN, Circuit Judge, dissenting:

The public is well served when some parts of our

government are insulated from the fray of politics. That is

because certain government functions are, or should be,

nonpartisan. For example, courts of law and other adjudicators

that apply legal standards to facts must be impartial, and their

impartiality is protected when the decision-makers do not fear

losing their jobs when there is a change in presidential

administrations. And some agencies that employ subject-

matter expertise to address technical regulatory and policy

issues, such as the Federal Reserve, are better able to execute

their duties and to inspire public confidence in their decision-

making if they are distanced from political considerations.

Such “independent” government entities have existed in

our country in some form since 1790.1 And 138 years ago,

Congress created the first nonpartisan expert independent

agency, the Interstate Commerce Commission (ICC). The

Supreme Court confirmed that such agencies are constitutional

ninety years ago.2 Today, approximately thirty-three

independent agencies apply specialized expertise to make

merit-based decisions on behalf of the American people, in

diverse areas like commerce, public safety, and energy.3 And

numerous courts of law — such as the Tax Court, the Court of

Appeals for the Armed Forces, and the Court of Appeals for

Veterans Claims — serve as independent adjudicators, even

though they are housed within the Executive Branch.

1

See Christine Kexel Chabot, Is the Federal Reserve

Constitutional? An Originalist Argument for Independent Agencies,

96 Notre Dame L. Rev. 1, 39–40 (2020) (describing the Sinking Fund

Commission of 1790, which had two members who were not

removable by the President).

2

See Humphrey’s Executor v. United States, 295 U.S. 602

(1935).

3

See infra notes 14–20.

2

The key feature that defines a government entity’s

independence from political influence is its freedom from total

control by the President. To safeguard that independence,

Congress has limited the President’s authority to remove the

leaders of agencies that it has determined should be

apolitical — and it has set such removal protections with the

approval of Republican and Democratic Presidents alike.4 As

relevant here, Congress has specifically provided that the

President may remove the leaders of certain independent

agencies only “for cause,” such as the leaders’ inefficiency,

malfeasance, or neglect of duty. For at least ninety years, it has

been settled law that Congress may impose statutory for-cause

removal protections in the exercise of its authority to organize

and structure the Executive Branch.

But today, my colleagues make us the first court to strike

down the independence of a traditional multimember expert

agency: They hold that the for-cause removal protections that

safeguard the political independence of the National Labor

Relations Board (NLRB) and the Merit Systems Protection

Board (MSPB) are unconstitutional. Under my colleagues’

reasoning, it appears that no independent agencies may

lawfully exist in this country: Their determination that the

MSPB cannot be independent — even though it is purely

adjudicatory and does not touch upon core constitutional

functions assigned to the President — suggests that no agencies

can be independent. Although my colleagues attempt to couch

their analysis in narrow terms, they redefine the type of

executive power that must be placed under the exclusive

command of the President, and effectively grant him dominion

over approximately thirty-three previously independent

agencies.

4

See infra note 8.

3

This case must be viewed in the context of a broader

reevaluation of how agency independence fits in our

constitutional system. The Supreme Court upheld the

constitutionality of independent agencies, like the MSPB and

the NLRB, in Humphrey’s Executor v. United States, 295 U.S.

602 (1935), and it has repeatedly reaffirmed the essential

holding of Humphrey’s. See, e.g., Wiener v. United States, 357

U.S. 349, 356 (1958); Seila Law LLC v. CFPB, 591 U.S. 197,

218 (2020). But the Court has expressed doubts about the

scope of Humphrey’s and is poised to reconsider its ruling in

that case. See Trump v. Slaughter, No. 25-332, slip op. at 1

(U.S. Sept. 22, 2025) (granting certiorari before judgment and

setting oral argument for December 2025). The pendency of

Slaughter places us in an unusual position: Although the

constitutional arguments before us mirror those raised in

Slaughter, the Supreme Court has rebuffed requests to hear the

instant cases in conjunction with Slaughter and has instead left

these cases for us to decide. See Trump v. Wilcox, 145 S. Ct.

1415, 1416–17 (2025) (declining to address the government’s

request for certiorari before judgment); Order Den. Cert.

Before J., Harris v. Bessent, No. 25-312 (U.S. Sept. 22, 2025);

Order Den. Cert. Before J., Wilcox v. Trump, No. 25-319 (U.S.

Sept. 22, 2025). We, in turn, expedited the instant appeals, and

we must consider them in the face of conflicting signals from

the Court. See Wilcox, 145 S. Ct. at 1416–17 (staying lower-

court injunctions favoring Wilcox and Harris based on a

finding that the government is likely to succeed on the merits,

but leaving intact the “narrow exceptions [to at-will removal]

recognized by our precedents”). Regardless of the odd

procedural posture in which we find ourselves, the bottom line

is that we are duty-bound to apply Humphrey’s until the

Supreme Court overrules it, and Humphrey’s requires us to

uphold the independence of the MSPB and the NLRB.

4

The government takes the position that agency

independence is unconstitutional because the President must

maintain ironclad control over any government entity that is

within the Executive Branch. It openly asks the Supreme Court

to overrule Humphrey’s, and it asks this court to essentially do

the same.5 The government’s extreme view of executive power

sharply departs from precedent and from prior applications of

the “unitary executive theory.” Although the Supreme Court

has adhered to a robust conception of executive power and the

unitary executive, it has never held that the Constitution flatly

prohibits the existence of independent agencies. If courts

implicitly or explicitly adopt such an extreme interpretation of

the Constitution after at least 138 years of contrary practice,

with the consequence of awarding even more power to a

President who has pushed the limits of Article II, I fear that it

will erode public confidence in the judiciary. Because

independent agencies have served our nation well for over a

century — with the blessing of all three branches of

government, under both Republican and Democratic leaders —

the government’s new argument that agency independence

inflicts “a grave harm to the separation of powers” lacks

credibility. Gov’t Br. 2. That is especially so where the

government’s theory purports to promote democratic

accountability while asking unelected judges to rewrite the

constitutional order.

Neither this case nor Slaughter is about whether the

President should be the master of all executive power wielded

by the federal government. The Supreme Court has already

5

See Brief for the Petitioners at 5, Slaughter, No. 25-332 (Oct.

10, 2025) (“If Humphrey’s Executor is not already a dead letter, this

Court should overrule it . . . .”); Gov’t Br. 21 (“Because Humphrey’s

Executor rests on repudiated reasoning, the decision can be

understood as precedential only as to the specific question it

resolved.”).

5

recognized that the Constitution vests all executive power in

the President; and as a result, he generally is entitled to remove

principal officers of the Executive Branch, such as agency

leaders, in his discretion. See Seila Law, 591 U.S. at 215; Free

Enter. Fund v. PCAOB, 561 U.S. 477, 483 (2010). The current

question before the courts is narrower: It is whether the

Constitution mandates that there can be no exceptions to that

general rule of at-will removal. Here, my colleagues implicitly

agree with the government that no such exceptions exist —

they adopt a vanishingly narrow view of the types of agencies

that may remain independent. Meanwhile, the government

asks both this court and the Supreme Court to accept its

maximalist view of executive power and to abandon

Humphrey’s.

Our starting point is the Supreme Court’s recognition of

an exception to the President’s at-will removal authority for

“multimember expert agencies that do not wield substantial

executive power.” Seila Law, 591 U.S. at 218. To overrule

that precedent so that the President may seize total control over

all independent agencies, the government must argue that the

current exception is impermissible because the Constitution

compels the President’s complete domination of the Executive

Branch. But the government’s position is logically flawed:

While arguing for total presidential control in sweeping terms,

the government nonetheless concedes that it may be

appropriate to carve out exceptions for the Federal Reserve and

Article I courts (which are situated within the Executive

Branch).6 In other words, the government argues for no

6

Reply Br. 13–15 (noting that Federal Reserve officials might

not be subject to at-will removal because of the agency’s history);

Oral Arg. 32:29–44 (“The common thread between the Article I

courts, the Fed, the Article IV courts is that, as either historical or

doctrinal matter, there is a significant . . . question as to whether that

6

exceptions while conceding that exceptions are allowed. If the

Constitution permits Congress to impose for-cause removal

restrictions to protect the independence of Federal Reserve

officials and Article I judges, there is no logical way to hold

that the Constitution nevertheless forbids Congress from

protecting the leaders of other government entities that have

similar needs for independence (i.e., because they also are

impartial adjudicators or have a historical tradition of political

independence).

Adoption of the government’s maximalist theory of

executive power (implicitly or explicitly) threatens to

fundamentally change the character of our government. In

essence, the government asks the courts to hold that our

Constitution requires all actions and decisions made by the

Executive Branch to be political. Thus, instead of relying on

subject-matter expertise to make merits-based decisions for the

public good, previously independent agencies must advance

the political agenda of the President. Taken to its logical end,

the government’s theory will eliminate removal protections for

all employees of the Executive Branch and place every hiring

decision and agency action under the political direction of the

President. But such a radical upending of the constitutional

order is not supported by the text or structure of the

Constitution and is inconsistent with the intent of the Framers.

And while the government claims to uphold the separation of

powers, its theory instead concentrates excessive power in the

President and thus paves the way to autocracy.

governmental entity is wielding traditional executive power.”); Brief

for the Petitioners at 23, Slaughter, No. 25-332 (Oct. 10, 2025) (“No

one disputes that the President’s illimitable power of removal

extends only to executive officers and excludes truly non-executive

appointees, such as D.C. Court of Appeals judges.” (cleaned up)).

7

The government urges an unprecedented interpretation of

the Constitution that would lead to the full politicization of our

government and a massive transfer of power to the President.

My colleagues take an alternative approach in name only.

Rather than expressly declaring Humphrey’s a dead letter, they

redefine Humphrey’s “substantial executive power” exception

such that it does not allow for any independent agencies. In so

doing, they enable the government to achieve its goals while

maintaining the appearance of judicial restraint. Under either

approach, independent agencies as we know them cannot exist

in this country. Because that outcome is not required by our

Constitution and does harm to our nation, I respectfully dissent.

I.

A. Legal Background

In 1935, the Supreme Court confirmed that Congress has

the power to create independent agencies in a landmark

opinion: Humphrey’s Executor v. United States. President

Franklin D. Roosevelt claimed that he was entitled to remove

commissioners of the Federal Trade Commission (FTC) at will,

and his Administration asserted that the statute that allowed

only “for cause” removal of FTC commissioners was “an

unconstitutional interference with the executive power of the

President.” Brief for the United States at 7, 20, Humphrey’s,

295 U.S. 602 (No. 667), 1935 WL 32965, at *7, *20. The

Supreme Court unanimously rejected that argument. The

Court upheld the FTC just as Congress had created it — as “a

body of experts who shall gain experience by length of service”

and “which shall be independent of executive authority, except

in its selection, and free to exercise its judgment without the

leave or hindrance of any other official or any department of

the government.” Humphrey’s, 295 U.S. at 625–26. The Court

emphasized that the FTC was “neither political nor executive,”

8

was “charged with the enforcement of no policy except the

policy of the law,” and was to be “nonpartisan” and

“impartial[].” Id. at 624. Notably, the FTC had five members

with staggered terms, and no more than three of them could be

from the same political party. Id. at 620. The Court held that

Congress had authority that “cannot well be doubted” to create

“quasi legislative” or “quasi judicial” agencies, and to require

them “to act in discharge of their duties independently of

executive control.” Id. at 629. Moreover, freedom from “the

suspicion of partisan direction” depended on for-cause removal

protection, because “one who holds his office only during the

pleasure of another cannot be depended upon to maintain an

attitude of independence against the latter’s will.” Id. at 625,

629.7

After the Supreme Court’s holding in Humphrey’s,

Congress created many more independent agencies in the mold

of the FTC — i.e., multimember expert bodies, performing

nonpartisan functions with impartiality. And each new

agency’s organic statute was signed into law by the then-

serving President.8 Furthermore, two decades after

7

The Court distinguished its previous decision in Myers v. United

States, 272 U.S. 52 (1926). There, the Court invalidated a statutory

provision that required the Senate’s advice and consent for the

removal of postmasters, while making numerous comments about

the scope of executive power. Id. at 163–64. Humphrey’s limited

Myers to its holding, which reached only “purely executive officers.”

Humphrey’s, 295 U.S. at 627–28, 631–32.

8

Presidents who have signed legislation creating independent

agencies include: Grover Cleveland (Interstate Commerce

Commission, see Interstate Commerce Act of 1887, Pub. L. No. 49-

104, § 11, 24 Stat. 379, 383); Calvin Coolidge (National Mediation

Board, see Railway Labor Act, Pub. L. No. 69-257, § 4, 44 Stat. 577,

579 (1926)), Franklin D. Roosevelt (National Labor Relations Board,

9

Humphrey’s, the Supreme Court reaffirmed the legality of

independent Executive Branch agencies in Wiener v. United

States, 357 U.S. 349 (1958), extending for-cause removal

protection to members of the purely adjudicatory nonpartisan

War Claims Commission, even though no express statutory

provision required it. Thus, in the ninety years since

Humphrey’s, all three branches of our government have

accepted the important role of apolitical independent agencies

within our constitutional system.

Fast forward from 1935 to the year 2020. In Seila Law

LLC v. Consumer Financial Protection Bureau, the Supreme

see National Labor Relations Act of 1935, Pub. L. No. 74-198, § 3(a),

49 Stat. 449, 451); Harry Truman (War Claims Commission, see War

Claims Act of 1948, Pub. L. No. 80-896, 62 Stat. 1240; Wiener, 357

U.S. at 354–56); Richard Nixon (Consumer Product Safety

Commission, see Consumer Product Safety Act, Pub. L. No. 92-573,

§ 4(a), 86 Stat. 1207, 1210 (1972)), Gerald Ford (Nuclear Regulatory

Commission, see Energy Reorganization Act of 1974, Pub. L. No.

93-438, § 201(e), 88 Stat. 1233, 1243), Jimmy Carter (Merit Systems

Protection Board, see Civil Service Reform Act of 1978, Pub. L. No.

95-454, § 1202(d), 92 Stat. 1111, 1122), Ronald Reagan (National

Indian Gaming Commission, see Indian Gaming Regulatory Act,

Pub. L. No. 100-497, § 5(b)(6), 102 Stat. 2467, 2470 (1988)), George

H.W. Bush (Chemical Safety and Hazard Investigation Board, see

Clean Air Act Amendments of 1990, Pub. L. No. 101-549,

§ 112(r)(6)(B), 104 Stat. 2399, 2565), Bill Clinton (Surface

Transportation Board, see ICC Termination Act of 1995, Pub. L. No.

104-88, § 701(b)(3), 109 Stat. 803, 932–33), George W. Bush

(Department of Defense: Board of Actuaries, see National Defense

Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,

§ 906(a)(1), 122 Stat. 3, 275–76), and Barack Obama (Consumer

Financial Protection Bureau, see Dodd-Frank Wall Street Reform

and Consumer Protection Act, Pub. L. No. 111-203, § 1011(c)(3),

124 Stat. 1376, 1964 (2010), independence invalidated by Seila Law,

591 U.S. at 230–38).

10

Court confronted a newly created independent agency with a

novel leadership structure: the CFPB. 591 U.S. at 207, 220.

“Congress tasked the CFPB with implementing and enforcing

a large body of financial consumer protection laws . . . .” Id. at

206 (cleaned up). The CFPB could issue “binding regulations”

and exercise “extensive adjudicatory authority.” Id. at 206–07.

It also possessed “potent enforcement powers,” including “the

authority to conduct investigations, issue subpoenas and civil

investigative demands, initiate administrative adjudications,

and prosecute civil actions in federal court.” Id. at 206 (citing

12 U.S.C. §§ 5562, 5564(a), (f)). The Supreme Court observed

that the CFPB was “almost wholly unprecedented” and differed

from the “traditional” multileader expert agency examined in

Humphrey’s in important respects. Id. at 207, 220. In

particular, the CFPB had a single Director who enjoyed a five-

year term, which meant that the for-cause removal protection

might prevent a President with only a four-year term from ever

appointing the agency’s leader. Id. at 225. Furthermore, the

CFPB had a unique funding arrangement — it was funded by

the Federal Reserve and therefore not subject to the

appropriations process controlled by Congress and the

President. Id. at 207–08. Citing those unusual structural

features, the Supreme Court determined that the CFPB

concentrated too much power in one person — the CFPB

Director — who was accountable to no one. Id. at 204–05,

224–25. The Court thus struck down the for-cause removal

protection for the Director, holding that it was unconstitutional

and violated the separation of powers. It addressed this

constitutional infirmity by making the CFPB Director

removable at the President’s will. Id. at 230–38.

In disapproving the unprecedented structure of the CFPB,

the Court noted that although Presidents by default have “at

will” removal authority over principal officers within the

Executive Branch, Humphrey’s established an exception to that

11

rule for “multimember expert agencies that do not wield

substantial executive power.” Seila Law, 591 U.S. at 218. The

Court did not specify what would constitute “substantial

executive power” under its test. Id. But the Court made clear

that it would “not revisit” Humphrey’s and would leave it “in

place,” even though it declined to “extend” the Humphrey’s

exception to a novel, single-director government agency. Id. at

215, 220, 228. Thus, the Court expressly left intact its prior

approval of “traditional” multileader independent agencies. Id.

at 207. Indeed, seven members of the Court endorsed the

notion that Congress could address the “problem” posed by the

CFPB’s lack of accountability by “converting the CFPB into a

multimember agency.” Id. at 237 (Roberts, C.J., joined by

Alito & Kavanaugh, JJ., concurring in the judgment); id. at 298

(Kagan, J., joined by Ginsburg, Breyer & Sotomayor, JJ.,

concurring in the judgment in part and dissenting in part). That

holding was consistent with other cases, before and since, that

also addressed the President’s authority to remove agency

leaders and left Humphrey’s untouched. See Free Enter. Fund,

561 U.S. at 483–84 (striking down two layers of for-cause

removal protection for an official but declining to “reexamine”

Humphrey’s); Collins v. Yellen, 594 U.S. 220, 250–51 (2021)

(striking down the independence of an agency headed by a

single person, regardless of whether the executive power it

wielded was significant, but recognizing that Seila Law did

“not revisit our prior decisions” (cleaned up)).

B. Procedural Background

The President dismissed MSPB Chair Cathy Harris and

NLRB Member Gwynne Wilcox in violation of the for-cause

removal statutes that safeguard the independence of their

respective agencies. The government claims that those for-

cause removal statutes are unconstitutional and that the

President therefore need not abide by them. Specifically, the

12

government asserts that Humphrey’s allowed for-cause

removal protections only for agencies that exercise “no part of

the executive power,” and “any exercise of executive power

subjects an agency head to the President’s control.” Gov’t Br.

22, 26–27 (emphasis added). According to the government, the

MSPB and the NLRB wield “substantial executive power”

even if their functions are largely adjudicatory, and an agency’s

exercise of any executive power requires it to be placed under

the control of the President. In sum, the government’s position

is that the President is entitled to remove as he pleases any and

all principal officers of any executive agency — including the

MSPB and the NLRB. Otherwise, the theory goes, the

separation of powers will be violated.

Two judges of the district court rejected the government’s

arguments. See Harris v. Bessent (Harris I), 775 F. Supp. 3d

164 (D.D.C. 2025) (Contreras, J.); Wilcox v. Trump (Wilcox I),

775 F. Supp. 3d 215 (D.D.C. 2025) (Howell, J.). They held

that Humphrey’s and Wiener are controlling Supreme Court

precedents that required them to uphold the for-cause removal

protections for members of the MSPB and the NLRB, which

are traditional multimember expert agencies. Judge Contreras

and Judge Howell issued permanent injunctions that effectively

restored Harris and Wilcox to their positions and required the

government to comply with the applicable for-cause removal

statutes. See Harris I, 775 F. Supp. 3d at 189; Wilcox I, 775 F.

Supp. 3d at 240–41. The government appealed.

During the pendency of the instant appeals, the

government moved to stay the district court’s injunctions, and

this court ultimately denied the government’s request. See

Harris v. Bessent (Harris III), Nos. 25-5037, 25-5057, 2025

WL 1021435 (D.C. Cir. Apr. 7, 2025) (en banc) (per curiam),

vacating Harris v. Bessent (Harris II), 2025 WL 980278 (D.C.

Cir. Mar. 28, 2025) (per curiam). The government then asked

13

the Supreme Court to stay the district court’s injunctions

pending appeal and to grant a writ of certiorari before

judgment. We heard oral argument in these cases — on an

expedited schedule — on May 16. On May 22, the Supreme

Court issued an order staying the district court’s judgments

pending final disposition of the cases. See Wilcox, 145 S. Ct.

1415. In so doing, the Court held that the government would

likely succeed on the merits because “the NLRB and MSPB

[likely] exercise considerable executive power.” Id. at 1416.

However, it expressly left intact the “narrow exceptions [to at-

will removal] recognized by [its] precedents.” Id. (citing Seila

Law, 591 U.S. at 215–18). The Court did not address the

government’s request for a writ of certiorari before judgment.

See id. at 1416–17.

Parallel to Harris’s and Wilcox’s cases, the government

has been litigating the President’s removal of FTC

Commissioner Rebecca Slaughter. After the President

removed Slaughter without cause, the district court relied on

Humphrey’s to order Slaughter’s reinstatement. This court

denied the government’s motion for a stay of the district court’s

order pending appeal. See Slaughter v. Trump, No. 25-5261,

2025 WL 2551247 (D.C. Cir. Sept. 2, 2025). The government

then asked the Supreme Court for a stay of the district court’s

judgment in Slaughter and petitioned for a writ of certiorari

before judgment.

Before the Supreme Court ruled on the Slaughter

applications, Harris and Wilcox filed separate petitions for

writs of certiorari before judgment. Petition for a Writ of

Certiorari Before Judgment, Harris v. Bessent, No. 25-312

(U.S. Sept. 15, 2025); Petition for a Writ of Certiorari Before

Judgment, Wilcox v. Trump, No. 25-319 (U.S. Sept. 15, 2025).

They argued that their cases and Slaughter present similar legal

issues and that the Court, should it grant certiorari before

14

judgment in Slaughter, should also grant certiorari before

judgment in Harris and Wilcox and consolidate the three cases.

The Court granted a stay of the district court’s injunction in

Slaughter and granted a writ of certiorari before judgment in

that case. But the Court denied both Harris’s and Wilcox’s

petitions for certiorari before judgment, thus leaving the instant

cases for this court to decide. The Court now is poised to hear

oral arguments in Slaughter.

Meanwhile, we are called upon to decide (1) whether the

government’s constitutional challenge to the for-cause removal

protections afforded to leaders of the MSPB and the NLRB is

foreclosed by Humphrey’s and Wiener; and (2) if it is not,

whether the Supreme Court’s precedents and the Constitution

require us to adopt the expansive view of executive authority

urged by the government. The government also argues that the

district court lacked authority to effectively reinstate Harris and

Wilcox to their posts at their respective agencies.

II.

A. Applying Existing Precedents

Just five years after Seila Law was decided, the

government comes before us to argue that the MSPB and the

NLRB — two traditional multileader expert agencies — are

unconstitutional in their current forms. Although Seila Law

held that the President generally has at-will removal authority

over all principal officers in the Executive Branch, it

recognized a long-standing exception for “multimember expert

agencies that do not wield substantial executive power” — and

it expressly left Humphrey’s on the books. See Seila Law, 591

U.S. at 204–05, 215–18. The most sensible interpretation of

Seila Law’s holding is that an agency with features and

functions like those approved by the Court in Humphrey’s

15

passes muster and, by implication, does not exercise

“substantial executive power.” The MSPB and the NLRB meet

that test.

The government contends, however, that the MSPB and

the NLRB may not be placed beyond the President’s total

control because each wields “executive power.” The

government takes the position that all Executive Branch

entities wield executive power and that “any exercise of

executive power subjects an agency head to the President’s

control.” Gov’t Br. 26 (emphasis added). According to the

government, because the MSPB and the NLRB are within the

Executive Branch, their predominantly adjudicatory functions

are exercises of executive power, and they therefore must be

controlled by the President. That theory departs from the

Supreme Court’s holding in Seila Law, which preserved the

independence of multileader expert agencies that do not wield

“substantial executive power,” not “any executive power.” In

short, Humphrey’s allows the existence of independent

multimember expert agencies that exercise no greater powers

than did the 1935 FTC; but the government suggests that zero

independent agencies are constitutional. And because the

government’s theory leaves no room in any corner of the

Executive Branch for any exceptions to the President’s at-will

removal authority, it eviscerates Humphrey’s. The government

thus does not ask us to abide by Humphrey’s, but instead

effectively asks us to overrule it, which we are not at liberty to

do.

As I see it, the MSPB and the NLRB fall squarely within

the exception to the President’s at-will removal authority that

the Supreme Court acknowledged in Humphrey’s and left “in

place” in Seila Law. Humphrey’s and Wiener control this case

because the MSPB and the NLRB are multimember expert

agencies that (1) exercise no more executive power than did the

16

1935 FTC that was approved in Humphrey’s, and (2) are

predominantly adjudicatory, like the independent War Claims

Commission that was approved in Wiener. They are therefore

“multimember expert agencies that do not wield substantial

executive power.” Seila Law, 591 U.S. at 218. Accordingly,

for-cause removal protections for leaders of the MSPB and the

NLRB are constitutional.

As previously discussed, Humphrey’s upheld the

constitutionality of for-cause removal protections for

commissioners of the 1935 FTC. The “set of powers”

exercised by the FTC that were “the basis for [the Humphrey’s]

decision,” Seila Law, 591 U.S. at 219 n.4, included the

authority to issue and then adjudicate complaints charging

unfair competition; to exercise “wide powers of investigation”

and “report to Congress with recommendations”; and to

recommend remedies in antitrust suits brought by the Attorney

General in federal court, Humphrey’s, 295 U.S. at 620–21

(citing Federal Trade Commission Act, Pub. L. No. 62-203,

§§ 5–7, 38 Stat. 717, 719–22 (1914)).

The Humphrey’s Court described key features of the FTC

that demonstrated its nonpartisanship and its need for

independence. Notably, the FTC was led by multiple

commissioners serving staggered, seven-year terms and

balanced along partisan lines. See Humphrey’s, 295 U.S. at

620, 624. Moreover, it was intended to be an “independent”

“body of experts” that was “charged with the enforcement of

no policy except the policy of the law.” Id. at 624–25. The

Court also observed that the FTC’s functions were “neither

political nor executive, but predominantly quasi judicial and

quasi legislative,” and any executive functions thus were

merely ancillary. Id. at 624, 628 & n.1. The Supreme Court

also addressed adjudicatory functions in Wiener, where the

Court held that the President had no power to “remove a

17

member of an adjudicatory body like the War Claims

Commission merely because he wanted his own appointees on

such a Commission.” 57 U.S. at 356. At bottom, the

constitutionality of removal restrictions “will depend upon the

character of the office.” Humphrey’s, 295 U.S. at 624, 631. As

relevant here, both the MSPB and the NLRB are predominantly

adjudicative and share many of the key characteristics of the

1935 FTC and the War Claims Commission that justified their

independence.

The MSPB functions more like a court than a regulator. It

is “predominantly an adjudicatory body,” as the government

concedes. Oral Arg. 12:19–23, Harris II, 2025 WL 980278

(No. 25-5037); see also 5 U.S.C. § 1204(a)(1). President

Jimmy Carter proposed the MSPB as “the adjudicatory arm of

the new personnel system,” with a bipartisan multimember

structure that would “guarantee independent and impartial

protection to employees.” Federal Civil Service Reform

Message to the Congress, 1 Pub. Papers 445 (Mar. 2, 1978).

Thus, the MSPB’s mission is “to adjudicate federal

employment disputes.” Harrow v. Dep’t of Def., 601 U.S. 480,

482 (2024). Specifically, it hears appeals of adverse

employment actions brought by federal workers. See 5 U.S.C.

§§ 7701(a), 7512, 7513(d). It also resolves in the first instance

a handful of other matters, such as cases brought by the Office

of Special Counsel for “corrective action” concerning

“prohibited personnel practice[s]” by agencies. Id.

§ 1214(b)(2)(C); see also id. §§ 1214(b)(4)(B)(i), 1215(a)(1),

3592(a)(2), 7521(b).

The structure of the MSPB is “patterned on the classic

independent regulatory agency sanctioned” in Humphrey’s.

FEC v. NRA Pol. Victory Fund, 6 F.3d 821, 826 (D.C. Cir.

1993). As in Humphrey’s, the President may remove a member

of the MSPB “only for inefficiency, neglect of duty, or

18

malfeasance in office.” 5 U.S.C. § 1202(d); Humphrey’s, 295

U.S. at 622. And like the 1935 FTC, the three members of the

MSPB must be drawn from different political parties, and they

serve staggered terms of seven years. 5 U.S.C. §§ 1201,

1202(a)–(c); Humphrey’s, 295 U.S. at 620.

The MSPB is passive and must wait for appeals and cases

to be initiated by federal employees, employer agencies, or the

Office of Special Counsel. Harris II, 2025 WL 980278, at *30

(Millett, J., dissenting) (citing 5 U.S.C. §§ 1204(a)(1),

1214(b)(1)(a); 5 C.F.R. § 1201.3). Notably, it is the Office of

Special Counsel that investigates and prosecutes certain kinds

of misconduct by federal agencies and then petitions the MSPB

for corrective action. See 5 U.S.C. § 1212. As a de facto

matter, the Special Counsel now answers to the President.9

Moreover, the MSPB does not regulate through rulemaking

because its rulemaking authority is limited to “such regulations

as may be necessary for the performance of its functions.” 5

U.S.C. § 1204(h).10

9

The Special Counsel is appointed by the President with the

advice and consent of the Senate. Although a statute confers for-

cause removal protection on the Special Counsel, see 5 U.S.C.

§ 1211, the President deemed that statute unconstitutional and fired

the former Special Counsel, Hampton Dellinger. Although the

district court ordered the government to reinstate Dellinger, a special

panel of this court stayed the district court’s order pending appeal,

Dellinger v. Bessent, No. 25-5052, 2025 WL 887518 (D.C. Cir. Mar.

10, 2025) (per curiam), and Dellinger subsequently dropped his suit.

As a result, the President has de facto authority to appoint a Special

Counsel of his own choosing. See Defendants’ Notice of the

President’s Designation of Acting Special Counsel, Dellinger v.

Bessent, No. 25-cv-385 (D.D.C. Feb. 12, 2025), ECF No. 13.

10

The responsibility of enforcing civil-service regulations and

laws and “aiding the President” in preparing civil-service rules and

policies is assigned to the Office of Personnel Management, a

separate agency. 5 U.S.C. § 1103(a)(7).

19

As the district court explained, the MSPB “spends nearly

all of its time adjudicating inward-facing personnel matters

involving federal employees.” Harris I, 775 F. Supp. 3d at 176

(cleaned up). The MSPB’s adjudicatory process is “designed

to reach consensus based on established MSPB and federal

case law,” as decisions are drafted by career attorneys without

MSPB members directing the results in advance. See Brief for

Former Board Members and General Counsel of the MSPB as

Amici Curiae Supporting Appellee 8. Like the War Claims

Commission in Wiener, the MSPB hears claims that are

“‘adjudicated according to law,’ that is, on the merits of each

claim, supported by evidence and governing legal

considerations”; and it serves as “a body that [is] ‘entirely free

from the control or coercive influence [of the President], direct

or indirect.’” 357 U.S. at 355 (quoting Humphrey’s, 295 U.S.

at 629). In short, the MSPB is so clearly adjudicatory and free

of quintessential executive responsibilities that if it exercises

“substantial executive power,” then every agency does.11

11

My colleagues’ discussion of the MSPB’s supposedly

substantial “executive” powers is unconvincing. They suggest that

the MSPB exercises substantial executive power because (1) it issues

“final decisions,” (2) it has “jack-of-all-trades” jurisdiction that is

less “specialized” than the 1935 FTC, and (3) it has the power to

award “legal and equitable relief in administrative adjudications.”

Maj. Op. 31–33 (citations omitted). But in Wiener, the Supreme

Court upheld for-cause removal protections for the leaders of the

War Claims Commission, which enjoyed “finality of determination”

over a “large number of claimants [with a] diversity in the specific

circumstances giving rise to the[ir] claims,” and which could order

“compensat[ion for] internees, prisoners of war, and religious

organizations.” 357 U.S. at 350, 354–55. Moreover, my colleagues

do not explain why the features they highlight represent the exercise

of “executive” power. In fact, many courts issue final decisions,

20

Congress created the NLRB to enforce the National Labor

Relations Act of 1935 (NLRA), which encourages collective

bargaining and protects the rights of workers. Pub. L. No. 74-

198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–

169). In designing the NLRB, Congress relied on Humphrey’s:

It enacted the NLRA “just over a month after Humphrey’s

Executor was decided and modeled the statute on the FTC’s

organic statute.” Harris II, 2025 WL 980278, at *31 (Millett,

J., dissenting) (citing the two agencies’ organic statutes).

The Board of the NLRB closely resembles the

Humphrey’s model. It consists of five members, appointed by

the President with the advice and consent of the Senate, who

serve staggered five-year terms. 29 U.S.C. § 153(a). A

member “may be removed by the President, upon notice and

hearing, for neglect of duty or malfeasance in office, but for no

other cause.” Id. Although no statutory provision requires a

partisan balance in the NLRB Board’s membership,

“Presidents since Eisenhower have adhered to a ‘tradition’ of

appointing no more than three members from their own party.”

Harris II, 2025 WL 980278, at *31 (Millett, J., dissenting)

(quoting Brian D. Feinstein & Daniel J. Hemel, Partisan

Balance with Bite, 118 Colum. L. Rev. 9, 54–55 (2018)).

The Board of the NLRB is “predominantly an adjudicatory

body.” Harris II, 2025 WL 980278, at *31 (Millett, J.,

dissenting). It decides disputes about unfair labor practices and

resolves union-representation questions. 29 U.S.C. § 159(b),

(c)(1)(A). The Board’s remedial authority includes issuing

cease-and-desist orders and orders to employers or unions to

under many different statutes, and award legal and equitable relief,

which suggests that those functions should be considered quasi-

judicial under Humphrey’s.

21

take “affirmative action,” such as “reinstatement of employees

with or without back pay.” Id. § 160(c). But to enforce its

orders, the Board must petition a federal court of appeals. Id.

§ 160(e); see also Dish Network Corp. v. NLRB, 953 F.3d 370,

375 n.2 (5th Cir. 2020) (“The NLRB may be the only agency

that needs a court’s imprimatur to render its orders

enforceable.”). Judicial review of a Board order is also

available for “[a]ny person aggrieved by a final order of the

Board.” 29 U.S.C. § 160(f).

Importantly, the investigation and prosecution of unfair

labor practices are performed by the General Counsel of the

NLRB, who brings cases before the Board for adjudication.

The General Counsel is appointed by the President, with the

advice and consent of the Senate, and is removable by the

President at will. 29 U.S.C. § 153(d). As a result, all

investigative and prosecutorial functions — hallmarks of

executive power — are wielded by an official accountable to

the President. Cf. Morrison v. Olson, 487 U.S. 654, 706 (1988)

(Scalia, J., dissenting) (“Governmental investigation and

prosecution of crimes is a quintessentially executive

function.”). Thus, “the character” of the Board is

“predominantly” adjudicative. Humphrey’s, 295 U.S. at 624,

631.12

12

The Board has only “circumscribed” rulemaking authority.

Harris II, 2025 WL 980278, at *31 (Millett, J., dissenting). True, it

has “authority . . . to make, amend, and rescind, in the manner

prescribed by [the Administrative Procedure Act], such rules and

regulations as may be necessary to carry out the provisions of [the

NLRA].” 29 U.S.C. § 156. But in practice, the Board does not

“promulgate binding rules,” in contrast to the CFPB. Seila Law, 591

U.S. at 218. “From its inception in 1935, the Board has exhibited a

negative attitude toward setting down principles in rulemaking,

rather than adjudication.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d

22

There is no denying “the intrinsic judicial character of the

task[s]” that are performed by the MSPB and the NLRB: They

apply law to facts and resolve cases. Wiener, 357 U.S. at 355.

They do not perform any quintessentially executive functions,

such as investigating and prosecuting cases to execute the law.

Nor do they touch upon subject areas that are expressly in the

President’s bailiwick, such as foreign affairs or national

defense. Moreover, the quasi-judicial duties of the MSPB and

the NLRB do not interfere with the President’s exercise of

executive power or impede the President’s ability to faithfully

execute the laws. See Morrison, 487 U.S. at 689–90 (“The

analysis contained in our removal cases is designed . . . to

ensure that Congress does not interfere with the President’s

exercise of the ‘executive power’ and his constitutionally

appointed duty to ‘take care that the laws be faithfully

executed’ under Article II.”).

Because both the MSPB and the NLRB are predominantly

adjudicatory, they wield less executive power than did the 1935

FTC, which had “wide powers of investigation” and authority

to issue complaints that it then adjudicated. Humphrey’s, 295

U.S. at 620–21; see also U.S. ex rel. Milwaukee Soc.

Democratic Publ’g Co. v. Burleson, 255 U.S. 407, 427–28

(1921) (explaining that when an executive official is “making

947, 949 (D.C. Cir. 2013) (cleaned up), overruled on other grounds

by Am. Meat Inst. v. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014)

(en banc). Although the government asserts that “the NLRB . . .

promulgates substantive rules of general applicability governing

employer-employee relations,” Gov’t Br. 29, the entire corpus of

substantive NLRB rules is limited to: (1) a rule concerning collective

bargaining units in healthcare facilities, 29 C.F.R. § 103.30; (2) a rule

addressing joint-employer status, id. § 103.40; and (3) jurisdictional

standards for colleges and universities, symphony orchestras, and

dog- or horse-racing industries, id. §§ 103.1, 103.2, 103.3.

23

[a] determination [in which] he must, like a court or a jury,

form a judgment whether certain conditions prescribed by

Congress exist, on controverted facts or by applying the law[,]

. . . [t]he function is a strictly judicial one, although exercised

in administering an executive office”). Thus, although the

MSPB and the NLRB may exercise some “executive power”

because they are housed within the Executive Branch, they do

not wield “substantial executive power.” Cf. City of Arlington

v. FCC, 569 U.S. 290, 304 n.4 (2013) (noting that when

agencies “conduct adjudications,” their activities take “judicial

forms,” yet “they are exercises of — indeed, under our

constitutional structure they must be exercises of — the

executive power” (cleaned up) (emphasis in original)).

In sum, the MSPB and the NLRB fall safely within

Humphrey’s exception to the President’s at-will removal

authority. Both agencies have nonpartisan multimember

leadership structures that allow every President to select at least

some of their members. See Humphrey’s, 295 U.S. at 625–26

(noting that the 1935 FTC was “independent of executive

authority, except in its selection” of commissioners). They also

conduct apolitical adjudicatory work that requires

independence and expertise; and they receive their funding

through the normal appropriations process. At bottom, they are

traditional multimember expert agencies that wield less

executive power than did the 1935 FTC, and they therefore do

not wield “substantial executive power.”

If the meaning of “substantial executive power” has

changed since Seila Law was decided, or if it is different from

what was approved in Humphrey’s, or if there is no longer a

test of “substantial” power at all, the Supreme Court must tell

us so. See Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490

U.S. 477, 484 (1989). We should follow the lead of other

courts of appeals and our own en banc court, which have

24

determined that Humphrey’s remains good law, despite the

parts of Seila Law that have been perceived to undermine its

reasoning. See Harris III, 2025 WL 1021435, at *1; Meta

Platforms, Inc. v. FTC, No. 24-5054, 2024 WL 1549732, at *2

(D.C. Cir. Mar. 29, 2024) (per curiam); Severino v. Biden, 71

F.4th 1038, 1047 (D.C. Cir. 2023); Leachco, Inc. v. Consumer

Prod. Safety Comm’n, 103 F.4th 748, 762–63 (10th Cir. 2024);

Consumers’ Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th

342, 346 (5th Cir. 2024). Humphrey’s and Wiener require us

to affirm the judgments entered by the district court. In the

alternative, we should hold these cases in abeyance and await

further instructions from the Supreme Court in Slaughter.

B. Departing from Existing Precedents

My colleagues break new ground in determining the type

and extent of executive power that must be controlled by the

President through the tool of at-will removal. Although Seila

Law recognized an exception to the President’s at-will removal

authority for “multimember expert agencies that do not wield

substantial executive power,” 591 U.S. at 218, my colleagues

essentially eliminate that exception by redefining what counts

as “substantial executive power.” They apply that term so

broadly that it encompasses the work of even adjudicatory

agencies that have little or nothing to do with traditional

executive functions. While my colleagues’ analysis is steeped

in details about the powers of the agencies at issue, and how

those powers compare with the responsibilities of the 1935

FTC, the bottom line is this: If the Constitution cannot tolerate

the independence of the purely adjudicatory MSPB, which

functions as a court in the specialized realm of employment

law, there is no agency that can escape total presidential

control. My colleagues hold, in substance, that the existence

of independent agencies is incompatible with our Constitution.

25

The government reaches the same end point — the

elimination of independent agencies — by taking a different

route. The government urges the more direct approach of

replacing the Supreme Court’s test of “substantial executive

power” with a new standard that gives the President total

control over agencies that wield “any executive power.” The

government claims that all Executive Branch entities wield

executive power, and any executive power must be supervised

by the President through at-will removal, because the

Constitution vests all executive power in him. Thus, because

independent agencies are within the Executive Branch, the

President must have total control over them, and there are no

constitutionally permissible independent agencies.

The government’s position is based on a new, maximalist

version of the “unitary executive theory.” Although that theory

stands for the proposition that all executive power must be

placed in the hands of the President, no court has ever applied

it to abolish all independent agencies. The government claims

that there can be no exceptions to the President’s general at-

will removal authority because at-will removal assures that

agencies are accountable to the people: According to the

government, voters elected the President and would want him

to direct all the affairs of the Executive Branch. Other methods

of presidential control — such as the appointment of agency

leaders, for-cause removal, and the appropriations

process — are considered insufficient.

Under the government’s maximalist theory, our duly

elected representatives in Congress who determined that

independent agencies serve the public interest were powerless

to do what they thought was best for the nation. Instead, the

government has suddenly realized, the Constitution requires us

to eradicate the independence of all Executive Branch

agencies. The government takes that position even though the

26

Founders approved a commission with members who were not

subject to the President’s at-will removal (the Sinking Fund

Commission) in 1790; multimember expert agencies have

existed since the ICC was established in 1877; and independent

agencies with certain features — including multimember

structures, bipartisanship, and the task of applying expertise to

address nonpolitical issues — were upheld by the Supreme

Court in Humphrey’s and left intact by Seila Law.

Given our long-standing acceptance of some agency

independence in our constitutional scheme, we should view

with suspicion the government’s insistence that an immediate,

drastic change to our government is necessary. Over the 138

years in which expert independent agencies have operated

within our constitutional system, our nation has not perceptibly

experienced any harms from the asserted lack of sufficient

political accountability.13 I am concerned that our implicit

adoption of the government’s radical view of executive

authority will enable the President to claim and consolidate too

much power, and that will cause the public to lose faith in the

impartiality of the judiciary. It may be difficult to persuade

members of the public that the Constitution really requires that

all appointments and decisions made within the Executive

Branch be political, when that has never been the country’s

experience or understanding.

13

When the government was asked at oral argument to explain

how our country has been tangibly harmed by the alleged widespread

constitutional problem posed by agency independence, it had no real

response. Government counsel spoke of “the blurring of the lines of

accountability” and “disabl[ing] the will of the people” — but he

could identify no actual detriment to the functioning of our

government and its ability to serve the public. Oral Arg. 8:23–24,

11:20–21.

27

The implicit or explicit adoption of a constitutional theory

that effectively outlaws independent agencies will have

profound effects on the governance of our nation. It threatens

to impair the work of approximately thirty-three agencies that

Congress has entrusted with important, apolitical missions, like

promoting public safety,14 facilitating commerce,15 serving the

legal system,16 helping the disadvantaged,17 protecting

14

The National Transportation Safety Board (49 U.S.C.

§ 1111(c)), the Occupational Safety and Health Review Commission

(29 U.S.C. § 661(b)), the Consumer Product Safety Commission (15

U.S.C. § 2053(a)), the National Advisory Council on the National

Health Service Corps (42 U.S.C. §254j(b)(1)), the Federal Mine

Safety and Health Review Commission (30 U.S.C. § 823(b)(1)(B)),

the Institute of Peace (22 U.S.C. § 4605(f)), the Chemical Safety and

Hazard Investigation Board (42 U.S.C. § 7412(r)(6)(B)), and the

Federal Aerospace Management Advisory Council (49 U.S.C.

§ 106(p)(6)(E)).

15

The Federal Trade Commission (15 U.S.C. § 41), the Federal

Maritime Commission (46 U.S.C. § 46101(b)(5)), the Postal Service

(39 U.S.C. § 202(a)(1)), the Postal Regulatory Commission (39

U.S.C. § 502(a)), the National Indian Gaming Commission (25

U.S.C. § 2704(b)(6)), the Surface Transportation Board (49 U.S.C.

§ 1301(b)(3)), the Corporation for Travel Promotion (22 U.S.C.

§ 2131(b)(2)(D)), and the Financial Oversight and Management

Board for Puerto Rico (48 U.S.C. § 2121(e)(5)(B)).

16

The Sentencing Commission (28 U.S.C. § 991(a)), the State

Justice Institute (42 U.S.C. § 10703(h)), the Civilian Board of

Contract Appeals (41 U.S.C. § 7105(b)(3)), and the Foreign Claims

Settlement Commission (22 U.S.C. §§ 1622(c), 1622b).

17

The Commission on Civil Rights (42 U.S.C. § 1975(e)) and the

Legal Services Corporation (42 U.S.C. § 2996c(e)).

28

workers,18 harnessing energy or natural resources,19 and

serving members of the military and veterans.20 Under the

government’s theory, judges who serve on Article I courts —

such as the Tax Court, the Court of Appeals for the Armed

Forces, and the Court of Appeals for Veterans Claims — also

may be subject to at-will removal because those courts are

situated within the Executive Branch and therefore exercise

some executive power. See Kuretski v. Comm’r, 755 F.3d 929,

943 (D.C. Cir. 2014) (holding that “the Tax Court exercises its

authority as part of the Executive Branch”); Edmond v. United

States, 520 U.S. 651, 664 (1997) (recognizing that the Court of

Appeals for the Armed Forces is an “Executive Branch

entity”); United States v. Arthrex, Inc., 594 U.S. 1, 20 (2021)

(describing the Court of Appeals for Veterans Claims as “an

Executive Branch entity”).

Although the government currently does not take the

position that Article I judges and Federal Reserve officials are

subject to at-will removal by the President, those arbitrary

carve-outs provide little reassurance — adoption of the

maximalist theory would allow the government to change its

mind whenever it becomes politically expedient. The

18

The National Labor Relations Board (29 U.S.C. §153(a)), the

Merit Systems Protection Board (5 U.S.C. § 1202(d)), the National

Mediation Board (45 U.S.C. § 154), the Federal Labor Relations

Authority (5 U.S.C. § 7104(b)), the Foreign Service Labor Relations

Board (22 U.S.C. § 4106(e)), and the Foreign Service Grievance

Board (22 U.S.C. § 4135(d)).

19

The Nuclear Regulatory Commission (42 U.S.C. § 5841(e)), the

Regional Fishery Management Councils (16 U.S.C. § 1852(b)(6)),

and the Federal Energy Regulatory Commission (42 U.S.C.

§ 7171(b)(1)).

20

The Department of Defense: Medicare-Eligible Retiree Health

Care Board of Actuaries (10 U.S.C. § 1114(a)(2)(A)) and the

Department of Defense: Board of Actuaries (10 U.S.C. § 183(b)(3)).

29

government’s theory also puts at risk inferior officers and

career civil servants employed by the Executive Branch: If the

Constitution entitles the President to exercise at-will removal

authority over all parties who wield any executive power, then

previously approved statutory protections for such employees

may well be unconstitutional. See Brief for the Petitioners at

20, Slaughter, No. 25-332 (Oct. 10, 2025) (describing a

previously recognized exception for inferior officers as

“dubious”). Thus, we may soon be living in a world in which

every hiring decision and action by any government agency

will be influenced by politics, with little regard for subject-

matter expertise, the public good, and merit-based decision-

making. Indeed, “[t]he power to remove government officials

and replace them with the chief executive’s preferred people

provides a powerful weapon to convert the government from

an instrument of law into the instrument of an autocratic chief

executive” — “[a] President can simply fire conscientious

people and seek to replace them with quislings willing to do his

bidding.” David M. Driesen, The Unitary Executive Theory in

Comparative Context, 72 Hastings L.J. 1, 42 (2020).

The impending upheaval is not required by our

Constitution, the Supreme Court’s precedents, or the unitary

executive theory. The Constitution unquestionably empowers

Congress to organize and structure the Executive Branch, and

the Constitution’s text and structure indicate that Congress’s

creation of independent agencies is within constitutional

bounds. Moreover, the Supreme Court has been careful, thus

far, to preserve the viability of independent multileader expert

agencies. See Seila Law, 591 U.S. at 216–18; Humphrey’s, 295

U.S. at 632. And that is consistent with the Court’s recognition

of a strong unitary executive. Under the Court’s precedents,

the President must be able to remove “purely executive”

officials, Humphrey’s, 295 U.S. at 631–32; see also Morrison,

487 U.S. at 689–90, as well as leaders of single-headed

30

agencies exercising executive power, Collins, 594 U.S. at 253–

54, and even leaders of multileader agencies that wield

“substantial executive power,” Seila Law, 591 U.S. at 218.

Eliminating agency independence altogether goes far beyond

what the unitary executive theory requires.

In sum, both the government’s theory and my colleagues’

analysis have the practical effect of outlawing independent

agencies in this country. In my view, the government and my

colleagues misread the Constitution and all the cases that have

come before.

1. The Unitary Executive Theory

As the Supreme Court explained in Seila Law, “[u]nder

our Constitution, the ‘executive Power’ — all of it — is ‘vested

in a President,’ who must ‘take Care that the Laws be faithfully

executed.’” 591 U.S. at 203 (quoting U.S. Const. art. II, §§ 1,

3). Rather than divide the power of the Executive Branch

among multiple actors, the Framers concentrated all its power

in a single President who would be “directly accountable to the

people through regular elections.” Id. at 224. To ensure that

Executive Branch officers also answer to the people, such

officers generally “must remain accountable to the President”

through the President’s power of at-will removal. Id. at 204,

213, 224. In addition, for the President to faithfully execute the

laws, he must effectively supervise those who assist him in

carrying out the functions of the Executive Branch, which also

necessitates the general power to remove principal officers who

lead Executive Branch agencies. See id. at 214.

The underlying premise of the unitary executive theory is

that the President alone is responsible for exercising all

executive power, and he therefore must have the right to

control (and remove) agency leaders who assist him in doing

31

the work of the Executive Branch. That idea is uncontroversial

as applied to the many agencies that perform core executive

functions on the President’s behalf. Core executive functions

include powers related to the national defense, foreign affairs,

and law enforcement. See Nixon v. Fitzgerald, 457 U.S. 731,

750 (1982) (noting that Article II “establishes the President as

the chief constitutional officer of the Executive Branch,

entrusted with supervisory and policy responsibilities of utmost

discretion and sensitivity,” including “the enforcement of

federal law[,] . . . the conduct of foreign affairs[,] . . . and

management of the Executive Branch”). The Constitution

plainly requires the President to have unfettered power to

remove the leaders of agencies like the Defense Department,

the State Department, and the Justice Department. See

Morrison, 487 U.S. at 690 (“Myers was undoubtedly

correct . . . in its broader suggestion that there are some ‘purely

executive’ officials who must be removable by the President at

will if he is to be able to accomplish his constitutional role.”

(quoting Myers v. United States, 272 U.S. 52, 132–34 (1926))).

But there is a continuum of government functions, and not

all such functions must be treated in the same way. Walter

Dellinger, when he headed the Office of Legal Counsel,

identified a “spectrum” of executive power: “[A]t one end of

the spectrum, restrictions on the President’s power to remove

officers with broad policy responsibilities in areas Congress

does not or cannot shelter from presidential policy control,”

such as the Secretary of Defense, “clearly should be deemed

unconstitutional.” The Constitutional Separation of Powers

Between the President and Congress, 20 Op. O.L.C. 124, 169

(1996). But “[a]t the other end of the spectrum,” “officers with

adjudicatory duties affecting the rights of private

individuals” — such as judges appointed to serve on Article I

courts — should not be subject to at-will removal because “the

contention that the essential role of the executive branch would

32

be imperiled by giving a measure of independence to such

officials is untenable under both precedent and principle.” Id.

The spectrum described by Dellinger recognizes that there is a

correlation between the amount of executive power that an

agency exercises and the amount of presidential oversight that

is constitutionally required. The immediate questions here are,

“Where do the MSPB and the NLRB fall on that spectrum of

executive power?” and ultimately, “May Congress

constitutionally create a category of agencies that need not be

placed under the President’s total control because their

functions do not interfere with or sufficiently implicate the

President’s exercise of executive power?”

Seila Law established just five years ago that the test for

constitutionally permissible independence is whether a

multileader expert agency exercises “substantial executive

power.” 591 U.S. at 218; see also Wilcox, 145 S. Ct. at 1416

(referencing “considerable executive power”). Because the

degree of necessary presidential supervision is commensurate

with the amount of executive power that an agency wields,

multimember agencies that do not exercise “substantial

executive power” may enjoy for-cause removal protections

because the President influences such agencies in less intrusive

ways that nevertheless preserve “the President’s ability to

perform his constitutional duty.” Morrison, 487 U.S. at 691;

see also Lisa Schultz Bressman & Robert B. Thompson, The

Future of Agency Independence, 63 Vand. L. Rev. 599, 632

(2010) (noting that independent agencies “are subject to other,

well-recognized measures of presidential influence that better

promote accountability”).

For instance, the President influences the MSPB and the

NLRB by appointing at least some of their members, see 5

U.S.C. § 1201 (MSPB); 29 U.S.C. § 153(a) (NLRB), and by

choosing their chairpersons, see 5 U.S.C. § 1203(a) (MSPB);

33

29 U.S.C. § 153(a) (NLRB); see also Humphrey’s, 295 U.S. at

625 (noting that the FTC would “be independent of executive

authority, except in its selection”). The President also may

ensure that agency leadership is competent and ethical by

removing, or threatening to remove, an agency leader for cause.

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

Moreover, these multileader independent agencies answer to

both Congress and the President through the appropriations

process, in which the President and Congress together

determine the agencies’ funding levels. Independent agencies

also are held accountable by Congress’s power to enact laws,

signed by the President, that can affect the agencies’ authority

and operations. Finally, the President exercises significant

control over the MSPB and the NLRB by overseeing many of

the cases that are brought before them, through his power to

appoint and remove the General Counsel of the NLRB and the

Special Counsel. Thus, the MSPB and the NLRB are

completely unlike the independent agencies that the Supreme

Court has deemed insufficiently accountable, due to features

like a single-head leadership structure, double layers of

accountability, or insulation from the normal appropriations

process. See Free Enter. Fund, 561 U.S. at 484; Seila Law, 591

U.S. at 225–26; Collins, 594 U.S. at 228. Instead, numerous

checks on the MSPB and the NLRB ensure that they remain

accountable to the President, the Congress, and the American

people, even if the President does not have at-will removal

authority.

Congress’s creation of independent multileader expert

agencies is consistent with the unitary executive theory.

Although Article II vests executive power in the President,

Article I commands that Congress “shall have Power To . . .

make all Laws which shall be necessary and proper for carrying

into Execution . . . all . . . Powers vested by this Constitution in

the Government of the United States, or in any Department or

34

Officer thereof.” U.S. Const. art. I, § 8. Thus, “[u]nitary

executive theorists concede that Congress has broad power

under the Necessary and Proper Clause to structure the

executive department.” Steven G. Calabresi & Kevin H.

Rhodes, The Structural Constitution: Unitary Executive,

Plural Judiciary, 105 Harv. L. Rev. 1153, 1165–68 (1992); see

also Michael W. McConnell, The President Who Would Not Be

King 146 (2020) (The Take Care Clause and the Commander-

in-Chief Clause “place the President at the head of a

hierarchical system, the substance of which is entirely within

congressional control.”). Indeed, it is “natural” to conclude

that the Necessary and Proper Clause lets Congress make

“judgment calls” about the removal of executive officers “as it

enacts particular statutes that structure particular agencies.”

Caleb Nelson, Special Feature: Must Administrative Officers

Serve at the President’s Pleasure?, Democracy Project 2025

(Sept. 29, 2025), https://perma.cc/758B-ZCTS. Even the

strongest formulations of the unitary executive theory have

recognized narrow “exceptions” to the general rule that the

President is entitled to remove principal officers who wield

executive power. Seila Law, 591 U.S. at 204; Wilcox, 145 S.

Ct. at 1416 (“Because the Constitution vests the executive

power in the President, he may remove without cause executive

officers who exercise that power on his behalf, subject to

narrow exceptions recognized by our precedents.” (citations

omitted)).

The current exception to the general rule of at-will removal

for independent multimember executive agencies is

appropriate because such agencies do not threaten the

President’s leadership of the Executive Branch: They wield

limited executive power, and the President can adequately

supervise them using methods other than at-will removal. In

particular, a strong unitary executive can coexist with an

independent MSPB and NLRB, as created by Congress,

35

because those agencies: (1) are predominantly adjudicatory and

therefore do not exercise substantial executive power;

(2) specialize in resolving labor and employment disputes, and

therefore have nothing to do with the President’s core

executive responsibilities; and (3) are accountable to the

President through his selection of agency leadership, the

appropriations and legislative processes, and his influence over

the agencies’ dockets of cases. Thus, the President remains

strong and in command of the Executive Branch,

notwithstanding the existence of these independent agencies.

In short, the unitary executive is compatible with the

independence of nonpartisan multimember expert agencies that

are (1) “neither political nor executive,” (2) “charged with the

enforcement of no policy except the policy of the law,” and

(3) “independent of executive authority, except in [their]

selection.” Humphrey’s, 295 U.S. at 624–26. That

compatibility is especially evident where the agencies in

question are predominantly adjudicatory and quasi-judicial,

therefore falling near the end of the executive-power spectrum

occupied by courts of law. The Supreme Court has allowed

traditional independent agencies to exist for at least ninety

years and has approved their independence while at the same

time recognizing a strong unitary executive. See Free Enter.

Fund, 561 U.S. at 483 (explaining that Article II “has been

understood to empower the President to keep [Executive

Branch] officers accountable — by removing them from office,

if necessary,” but also holding, under Humphrey’s, “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”); Seila Law, 591 U.S. at 203–04 (noting that “the

executive power — all of it — is vested in a President,” but

also acknowledging that, under Humphrey’s, “Congress could

create expert agencies led by a group of principal officers

36

removable by the President only for good cause” (cleaned up)).

Thus, the unitary executive theory does not require us to

eliminate all independent multimember expert agencies.

2. The Maximalist Unitary Executive

The government urges us to adopt a new, maximalist

formulation of the unitary executive theory that entitles the

President to assert total control over all agencies that wield any

executive power, without exception — and that control

logically must extend to every agency, court, or entity within

the Executive Branch. The President’s mandatory control must

be effectuated, according to the government, through at-will

removal power over all the leaders of Executive Branch

entities, including those that previously have been independent.

The government’s maximalist theory that places “any

executive power” under absolute presidential control is a sharp

departure from the Supreme Court’s recognition of an

exception “for multimember expert agencies that do not wield

substantial executive power.” Seila Law, 591 U.S. at 216, 218

(emphases added); see also Wilcox, 145 S. Ct. at 1415

(referencing “considerable executive power” (emphasis

added)). Yet the government contends that its new maximalist

theory is not just better than the alternative, but that the

Constitution commands our sudden acceptance of it, despite

138 years of our nation’s contrary practice and understanding.

My colleagues do not explicitly embrace the government’s

reasoning, but they de facto agree with the underlying premise

of total executive control that leaves no room for political

independence. Their view that even the MSPB — a purely

adjudicatory agency that functions as an employment-law court

— wields “substantial executive power” unmistakably implies

that no Executive Branch agencies can remain independent.

37

My colleagues thus adopt their own theory of maximalist

executive authority.

In considering the approaches advocated by the

government and my colleagues, it is beyond debate that the

President is entitled to control and to supervise the executive

power of the federal government, which “generally” entitles

him to remove principal Executive Branch officials at his

discretion. See Seila Law, 591 U.S. at 213; accord Free Enter.

Fund, 561 U.S. at 513–14. The question before us is whether

the Constitution prohibits any exception to the general rule of

at-will removal. And the available evidence indicates that the

Constitution does not compel such an interpretation. See Caleb

Nelson, supra (“[B]oth the text and history of Article II are far

more equivocal than the current [Supreme] Court has been

suggesting.”). To the contrary, we should reject any theory that

requires the abolition of independent agencies because that

drastic action (1) is unsupported by constitutional text,

structure, and original intent; and (2) violates the separation of

powers.

i. Constitutional Text, Structure, and Original Intent

The Constitution does not specifically address the removal

of officers in the Executive Branch, other than by providing for

impeachment under certain circumstances. But the Necessary

and Proper Clause of Article I empowers Congress “[t]o make

all Laws which shall be necessary and proper for carrying into

Execution the foregoing Powers [of Congress], and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.” U.S.

Const. art. I, § 8. That broad authority allows Congress to

create and structure government agencies, and it is “natural” to

conclude that Congress can make “judgment calls” about the

removal of officers “as it enacts particular statutes that

38

structure particular agencies.” Caleb Nelson, supra. The right

of removal is not inherent to the executive power because that

power “entails executing laws . . . , such as statutes enacted by

Congress,” and the President is “not in charge of the content of

those laws.” Id. Moreover, “neither the Vesting Clause nor

anything else in Article II compels the inference that after

officers have been duly appointed, and after the President has

issued the commissions that the Constitution requires, the

President must be able to terminate the appointments and

rescind the commissions at will . . . .” Id. Thus, nothing in the

Constitution’s text supports the government’s claim that the

President’s general removal power must be absolute and cannot

be subject to exceptions.

Importantly, the Framers assumed that the President would

not necessarily have the right to remove Executive Branch

officials. In 1790, the First Congress established the Sinking

Fund Commission to repay the country’s Revolutionary War

debt. The members of the Commission were “the President of

the Senate [i.e., the Vice President], the Chief Justice, the

Secretary of State, the Secretary of the Treasury, and the

Attorney General.” Act of Aug. 12, 1790, ch. 47, § 2, 1 Stat.

186, 186; see also Chabot, supra note 1, at 39–40. The Vice

President — who at that time, before the Twelfth Amendment,

was the runner-up from the last presidential election rather than

the President’s running mate — and the Chief Justice were not

subject to removal by the President, thus insulating the

Commission from complete presidential control. Chabot,

supra note 1, at 41. Alexander Hamilton proposed the

Commission, the First Congress passed legislation that

established it, and President George Washington signed the law

— all of which would be surprising if the Commission’s

independent structure violated the very Constitution that those

people had just forged. See id. at 42–43.

39

Nor was the Sinking Fund Commission an anomaly. See

Christine Kexel Chabot, Interring the Unitary Executive, 98

Notre Dame L. Rev. 129, 133 (2022) (documenting how the

First Congress “repeatedly enabled independent exercises of

significant executive power that fell outside of the President’s

complete control and removal power”). Congress restricted the

President’s removal authority over the heads of the First (1791)

and Second (1816) Banks of the United States, the judges of

the Court of Claims (1855), and the Comptroller of the

Currency (1863). Harris II, 2025 WL 980278, at *37 (Millett,

J., dissenting). Even the government concedes that the “early

Congresses . . . provided that the Banks of the United States —

like the Federal Reserve — would have a degree of insulation

from the President’s control.” Gov’t Reply 15. Indeed, James

Madison himself, speaking from the House floor, attested in

1789 that “because Congress may establish [executive] offices

by law . . . , most certainly it is in the discretion of the

Legislature to say upon what terms the office shall be held,

either during good behaviour or during pleasure.” 1 Annals of

Cong. 374–75 (1789).

Although it is true that the First Congress voted to give the

President plenary removal power over the Secretary of Foreign

Affairs in 1789, the import of that event is debatable. It is

unclear whether the President’s removal authority in that

instance was seen as granted by Congress or required by the

Constitution. Compare Lawrence Lessig & Cass R. Sunstein,

The President and the Administration, 94 Colum. L. Rev. 1,

25–29 (1994), with Saikrishna Prakash, New Light on the

Decision of 1789, 91 Cornell L. Rev. 1021, 1021 (2006).

Moreover, the First Congress’s confirmation that the President

has conclusive authority to remove the Secretary of Foreign

Affairs — a purely executive official exercising core Article II

powers — does not establish that the President necessarily

must have at-will removal authority over all other agency

40

leaders in the Executive Branch, including those who do not

wield substantial executive power.

In sum, a search for evidence that the Constitution compels

us to accept a maximalist interpretation of executive power

comes up short. The government’s theory that “the President

must have full control over each and every exercise of

‘executive’ power by the federal government (including an

unlimitable ability to remove all or almost all executive officers

for reasons good or bad)” gives the President “more power than

any member of the founding generation could have

anticipated.” Caleb Nelson, supra.

ii. The Separation of Powers

The government posits that the Constitution tolerates no

exceptions to the President’s at-will removal authority because

the President is answerable to the people, while unelected

agency heads are not. See Oral Arg. 4:14–9:24. Thus, the

foundation of the government’s maximalist theory of executive

power is political accountability. And the government claims

that a departure from “Article II’s design . . . inflicts a

constitutional harm on the country.” Id. at 4:53–57. But once

we accept that the President generally is entitled to remove

Executive Branch officials who wield executive power, the

government’s theory does not effectively explain why there can

be no exceptions to the general rule, especially where

precedents recognize such exceptions. We must bear in mind

that Congress duly enacted the for-cause removal statutes at

issue, with the consent of the Presidents who signed the

legislation in question.

Congress is “the branch of our Government most

responsive to the popular will.” Indus. Union Dep’t, AFL-CIO

v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist,

41

J., concurring in the judgment). A first-term President faces

voters only when he is running for reelection after four years in

office, while a second-term President is not checked by the

ballot box at all. But every member of the House and one third

of Senators go before their constituents every two years. See

U.S. Const. art. I, §§ 2, 3. And while the President may act

unilaterally and privately, members of Congress deliberate and

vote collectively and transparently. They are also closer to

their voters: “Elected representatives solicit the views of their

constituents, listen to their complaints and requests, and make

a great effort to accommodate their concerns.” Biden v.

Missouri, 595 U.S. 87, 105 (2022) (Alito, J., dissenting).

Accordingly, “[a] statute enacted by Congress expresses the

will of the people of the United States in the most solemn

form.” United States v. Lee Yen Tai, 185 U.S. 213, 222 (1902).

Respect for democracy, therefore, requires respect for the

policy decisions of “those popularly chosen to legislate.” Felix

Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L Rev. 527, 545 (1947). And because we owe “[d]ue

respect for the decisions of a coordinate branch of

Government,” we must review acts of Congress with a

“presumption of constitutionality.” United States v. Morrison,

529 U.S. 598, 607 (2000). Unelected judges do not uphold the

ideals of democracy and political accountability when they

overturn laws that were passed by the people’s representatives.

To the extent the goals of the President and Congress are

in tension here, the President’s power is at its “lowest ebb.”

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

637 (1952) (Jackson, J., concurring). Where a President defies

a law duly enacted by Congress, such a “[p]residential claim to

a power at once so conclusive and preclusive must be

scrutinized with caution, for what is at stake is the equilibrium

established by our constitutional system.” Id. at 638. Indeed,

the example that Justice Jackson used to illustrate the

42

President’s relative weakness in the face of contrary

congressional intent was Humphrey’s Executor: “President

Roosevelt’s effort to remove a Federal Trade Commissioner

was found to be contrary to the policy of Congress and

impinging upon an area of congressional control, and so his

removal power was cut down accordingly.” Id. at 638 n.4. It

bears emphasis that Justice Jackson observed in Youngstown,

the Court’s iconic decision on the separation of powers, that

statutory for-cause removal restrictions fall within “an area of

congressional control” — i.e., Congress’s prerogative to

structure the Executive Branch. Id.

In the cases before us, “the equilibrium established by our

constitutional system” is indeed at stake. Youngstown, 343

U.S. at 638 (Jackson, J., concurring). My colleagues’ implicit

and substantial adoption of the government’s maximalist view

of the unitary executive will allow the President to seize power

that Congress did not intend for him to have, and thus will

aggrandize the Executive Branch at the expense of the

Legislative Branch. The “concentration of [so much] power in

the hands of a single branch is a threat to liberty.” Clinton v.

City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J.,

concurring). As Justice Brandeis put it, “[t]he doctrine of the

separation of powers was adopted by the convention of 1787

not to promote efficiency but to preclude the exercise of

arbitrary power. The purpose was not to avoid friction, but, by

means of the inevitable friction incident to the distribution of

the governmental powers among three departments, to save the

people from autocracy.” Myers, 272 U.S. at 293 (Brandeis, J.,

dissenting); see also Gundy v. United States, 588 U.S. 128, 169

(2019) (Gorsuch, J., dissenting) (warning against

“accelerat[ing] the flight of power from the legislative to the

executive branch, turning the latter into a vortex of authority

that was constitutionally reserved for the people’s

representatives in order to protect their liberties”). In the face

43

of an attempted power grab that will transform our country, the

role of the courts is to prevent undue concentration of power,

not guarantee it.

III.

The government argues that the district court had no

authority to “reinstate” Harris and Wilcox, whether through

declaratory or injunctive relief. Gov’t Br. 39. I disagree.

The district court awarded substantively identical

declaratory and injunctive relief to Harris and Wilcox.21 On

appeal, the government does not contest the district court’s

authority to declare “that the removal[s] w[ere] unlawful.”

Gov’t Br. 40 n.7. Instead, it argues (1) that the “court’s

declaration[s] that [Harris and Wilcox] shall continue to

remain” members of the MSPB and the NLRB amounted to

“full reinstatement” and thus exceeded the district court’s

authority, id., and (2) that the district court lacked equitable

authority to reinstate Harris and Wilcox via injunctions against

various subordinate executive officials, id. at 38.

The Supreme Court will consider similar arguments in

Slaughter. See Question Presented, Slaughter, No. 25-332

(Sept. 22, 2025) (instructing the parties to brief “[w]hether a

federal court may prevent a person’s removal from public

office, either through relief at equity or at law”). But in the

meantime, our own precedents bind us.

We have repeatedly recognized that lower courts enjoy

equitable authority to de facto reinstate wrongfully removed

21

In the alternative, the district court noted that Harris and Wilcox

likely were entitled to mandamus relief, but it ultimately did not grant

such extraordinary relief.

44

officers. See Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir.

1996) (recognizing the availability of a de facto reinstatement

remedy requiring subordinate executive officials to “treat[]

Swan as a member of the [agency] Board and allow[] him to

exercise the privileges of that office”); Severino v. Biden, 71

F.4th 1038, 1042–43 (D.C. Cir. 2023) (“We can enjoin

subordinate executive officials to reinstate a wrongly

terminated official de facto, even without a formal presidential

reappointment.” (cleaned up)); see also Harris II, 2025 WL

980278, at *44 (Millett, J., dissenting) (“Swan and Severino . . .

held that an injunction could restore someone to office de

facto.”); cf. Sampson v. Murray, 415 U.S. 61, 63 (1974) (“[T]he

District Court is not totally without authority to grant interim

injunctive relief to a discharged Government employee . . . .”).

Consistent with our precedent, the district court properly

awarded declaratory and injunctive relief to Harris and

Wilcox.22

* * *

For the reasons discussed, I would affirm the judgments of

the district court. Unlike my colleagues, I would decline the

government’s invitation to radically reshape our government.

As Justice Robert H. Jackson so eloquently stated:

The actual art of governing under our

Constitution does not and cannot conform to

judicial definitions of the power of any of its

branches based on isolated clauses or even

22

Further, it is notable that the Supreme Court has recently

declined to stay several lower-court orders reinstating federal

officials who were removed by the President. See Order, Trump v.

Cook, No. 25A312 (U.S. Oct. 1, 2025) (member of the Federal

Reserve Board); Order, Blanche v. Perlmutter, No. 25A478 (U.S.

Nov. 26, 2025) (Registrar of Copyrights).

45

single Articles torn from context. While the

Constitution diffuses power the better to

secure liberty, it also contemplates that

practice will integrate the dispersed powers

into a workable government.

Youngstown, 343 U.S. at 635 (Jackson, J., concurring).

Throughout our history, the Supreme Court’s precedents and

our nation’s practice and tradition have allowed independent

multimember expert agencies to operate successfully within

our constitutional system; and as a result, we have reaped the

benefits of a workable government that best serves the interests

of the American people. The government now urges an

extreme view of Article II’s Vesting Clause, torn from context:

It attempts to reduce the actual art of governing to an

uncompromising usurpation of power by the President, all in

defiance of Congress’s authority and without regard for the

public good. My colleagues’ substantial acceptance of the

government’s maximalist theory of executive power brings us

closer to autocracy, harms our nation, and violates the

separation of powers. I respectfully dissent.