Petition for Writ of Certiorari — Cathy A. Harris, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.
Supreme Court briefMar 17, 2026
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APPENDIX
TABLE OF CONTENTS
APPENDIX A—D.C. Circuit Opinion
(Dec. 5, 2025) ...................................................... 1a
APPENDIX B—D.D.C. Order Granting
Summary Judgment (Mar. 4, 2025) ................ 91a
APPENDIX C—D.D.C. Memorandum
Opinion Granting Summary Judgment
(Mar. 4, 2025) ................................................... 93a
APPENDIX D—D.C. Circuit Order Granting
Emergency Stay Motions (Mar. 28, 2025)..... 136a
APPENDIX E—D.C. Circuit En Banc Order
Vacating Emergency Stay Order and
Denying Stay Pending Appeal
(Apr. 7, 2025).................................................. 258a
APPENDIX F—D.C. Circuit Order
Denying Panel Rehearing
(Jan. 9, 2026) .................................................. 279a
APPENDIX G—D.C. Circuit Order
Denying Rehearing En Banc
(Jan. 9, 2026) .................................................. 281a
APPENDIX H—Excerpt of Transcript of D.C.
Circuit Oral Argument (Mar. 18, 2025) ........ 283a
1a
APPENDIX A
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
Appeal 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,
2a
Joshua M. Salzman, Laura E. Myron, and Daniel
Aguilar, Attorneys.
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.
3a
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
4a
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 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 ContiBrown 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.
5a
KAPLAN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF
THE NATIONAL LABOR RELATIONS BOARD,
APPELLANTS
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
6a
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.
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.
7a
Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Liz
Kramer, Solicitor 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
8a
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, 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 ContiBrown 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
9a
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-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
10a
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 ceaseand-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 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,
11a
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 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).
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.
12a
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 Senateconfirmed 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).
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
13a
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. §
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
14a
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 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.
15a
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.
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
16a
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 “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
17a
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).
Seila Law held that the Myers rule—not the
Humphrey’s Executor exception—governs removal of
18a
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-ofpowers 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
19a
entrusted to the President through the Take Care
Clause. See id. at 138. In Bowsher v. Synar, 478 U.S.
714 (1986), the 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 quasilegislative 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
20a
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
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’
21a
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).
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 quasilegislative 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.
22a
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 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.”).
23a
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 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
24a
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).
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
25a
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 openended, 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, 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.
26a
* * * *
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 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
27a
authority covers not only rules establishing unfair
labor practices under section 8, but also “industrywide 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 quasijudicial. 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-bycase adjudication. See Raladam, 283 U.S. at 648;
28a
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
29a
regulation,” Republic Aviation Corp. v. NLRB, 324
U.S. 793, 804–05 (1945).
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
30a
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.
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
31a
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 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 unfairlabor-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
32a
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 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-
33a
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 quasilegislative 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 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
34a
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 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
35a
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 employee discipline, the MSPB may
order relief “including reinstatement, backpay, and
36a
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.
37a
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.
38a
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 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 wideranging 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 quasijudicial, 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
39a
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 wellworn path, we hold that the appropriate resolution
here is to disregard the statutory removal restrictions
for NLRB and 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
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.
40a
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 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.
41a
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 meritbased 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,
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.
1
42a
and the Court of Appeals for Veterans Claims — serve
as independent adjudicators, even though they are
housed within the Executive Branch.
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 forcause 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
4 See infra note 8.
43a
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.
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
44a
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.
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
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.”).
45a
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 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
46a
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 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
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 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)).
47a
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 subjectmatter 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.
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
48a
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,” 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”
49a
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
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, 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. 80896, 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.
7
50a
Furthermore, two decades after 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 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
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. 100497, § 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).
51a
“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,
52a
Humphrey’s established an exception to that 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
53a
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
government asserts that Humphrey’s allowed forcause 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
54a
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 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 atwill 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
55a
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 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 forcause 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
56a
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 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
57a
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 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
58a
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, sevenyear 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
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
59a
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 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
60a
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 forcause 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).
61a
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
62a
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
colleagues do not explain why the features they highlight
represent the exercise of “executive” power. In fact, many courts
issue final decisions, under many different statutes, and award
legal and equitable relief, which suggests that those functions
should be considered quasi-judicial under Humphrey’s.
63a
unfair labor practices and resolves unionrepresentation 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 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
64a
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 quasijudicial 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.”).
[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 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.
65a
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 [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
66a
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
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
67a
“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.
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.
68a
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 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.
69a
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.
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,
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.
70a
facilitating
like
promoting
public
safety,14
15
16
commerce, serving the legal system, helping the
disadvantaged,17 protecting workers,18 harnessing
energy or natural resources,19 and serving members
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)).
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)).
71a
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
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,
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)).
72a
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 agencies exercising
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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.
74a
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 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
75a
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
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
76a
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, wellrecognized 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); 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
77a
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 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
78a
“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, 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
79a
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
removable by the President only for good cause”
(cleaned up)). Thus, the unitary executive theory does
80a
not require us to eliminate
multimember expert agencies.
all
independent
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
81a
that no Executive Branch agencies can remain
independent. 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
82a
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 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
83a
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.
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).
84a
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 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
85a
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, 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
86a
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 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
87a
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 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.
88a
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 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[]
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.
89a
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
single Articles torn from context. While the
Constitution diffuses power the better to secure
liberty, it also contemplates that practice will
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).
90a
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.
91a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No.: 25-412 (RC)
Re Document No.: 22
CATHY A. HARRIS, in her personal capacity and
in her official capacity as Member of the Merit
Systems Protection Board,
Plaintiff,
v.
SCOTT BESSENT, in his official capacity as
Secretary of the Treasury, et al.,
Defendants.
ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
For the reasons stated in the Court’s Memorandum
Opinion separately and contemporaneously issued,
Plaintiff Cathy A. Harris’s Motion for Summary
Judgment (ECF No. 22) is GRANTED. It is hereby:
DECLARED that Plaintiff Cathy A. Harris
remains a member of the Merit Systems Protection
Board, having been confirmed by the Senate on May
92a
25, 2022, and sworn in on June 1, 2022, and that she
may be removed by the President prior to the
expiration of her term in office only for inefficiency,
neglect of duty, or malfeasance in office pursuant to 5
U.S.C. § 1202; and it is
FURTHER ORDERED that Plaintiff Cathy A.
Harris shall continue to serve as a member of the
Merit Systems Protection Board until her term
expires pursuant to 5 U.S.C. § 1202, unless she is
earlier removed for inefficiency, neglect of duty, or
malfeasance in office under that statute. Defendants
Secretary Scott Bessent, Deputy Director Trent
Morse, Director Sergio Gor, Acting Chairman Henry
Kerner, and Director Russell Vought are ENJOINED
from removing Harris from her office without cause or
in any way treating her as having been removed
without cause, denying or obstructing Harris’s access
to any of the benefits or resources of her office, placing
a replacement in Harris’s position, or otherwise
recognizing any other person as a member of the
Merit Systems Protection Board in Harris’s position;
and it is
FURTHER ORDERED that the Court’s
Temporary Restraining Order (ECF No. 8) is
VACATED.
SO ORDERED.
Dated: March 4, 2025 RUDOLPH CONTRERAS
United States District Judge
93a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No.: 25-412 (RC)
Re Document No.: 22
CATHY A. HARRIS, in her personal capacity and
in her official capacity as Member of the Merit
Systems Protection Board,
Plaintiff,
v.
SCOTT BESSENT, in his official capacity as
Secretary of the Treasury, et al.,
Defendants.
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
I. INTRODUCTION
Plaintiff Cathy A. Harris was appointed to the Merit
Systems Protection Board ("MSPB") on June 1, 2022,
for a term set to expire on March 1, 2028. Federal law
states that members of the MSPB may be removed
from office "only for inefficiency, neglect of duty, or
94a
malfeasance in office." On February 10, 2025,
President Donald J. Trump informed Harris that her
position on the MSPB was "terminated, effective
immediately" but provided no reason for Harris's
termination. The following day, Harris filed this
lawsuit against President Trump and several other
federal officials ("Defendants"), claiming that her
termination violated federal law. She moved for a
temporary restraining order enjoining Defendants
from treating her as removed from office, which this
Court granted. The parties consolidated preliminary
injunction briefing with the merits, and Harris moved
for summary judgment. The Court grants that
motion, along with declaratory judgment and a
permanent injunction.
II. BACKGROUND
A. Statutory Background
Congress created the Merit Systems Protection
Board as a component of the Civil Service Reform Act
of 1978 ("CSRA"), which "establishes a framework for
evaluating personnel actions taken against federal
employees." Kloeckner v. Solis, 568 U.S. 41, 44, 133 S.
Ct. 596, 184 L. Ed. 2d 433 (2012); see also CSRA, Pub.
L. No. 95-454, § 202, 92 Stat. 1111, 1121-25 (1978)
(codified at 5 U.S.C. §§ 1201-05). Congress's Findings
and Statement of Purpose indicate that "[i]t is the
policy of the United States that . . . to provide the
people of the United States with a competent, honest,
and productive Federal work force[,] . . . Federal
personnel management should be implemented
consistent with merit system principles." CSRA § 3,
92 Stat. at 1112. Those merit system principles
include, among others, "[r]ecruitment . . . from
qualified individuals" where "selection and
95a
advancement [is] determined solely on the basis of
relative ability, knowledge, and skills, after fair and
open competition which assures that all receive equal
opportunity." Id. § 101, 92 Stat. at 1113 (codified at 5
U.S.C. § 2301). Congress additionally instructed that
"[e]mployees should be . . . protected against arbitrary
action, personal favoritism, or coercion for partisan
political purposes," as well as "against reprisal for the
lawful disclosure of information which the employees
reasonably believe evidences," among other things,
violations of law, gross waste of funds, an abuse of
authority, or substantial and specific dangers to
public health or safety. Id., 92 Stat. at 1114 (codified
at 5 U.S.C. § 2301).
The CSRA established the MSPB as "an
independent agency consisting of three members" and
"charged [it] with protecting the merit system
principles and adjudicating conflicts between federal
workers and their employing agencies." Frazier v.
Merit Sys. Prot. Bd., 672 F.2d 150, 154, 217 U.S. App.
D.C. 297 (D.C. Cir. 1982); see also CSRA § 101, 92
Stat. at 1114-17 (codified at 5 U.S.C. § 2302)
(establishing prohibited personnel practices, such as
employment discrimination, unlawful political
activities, and any other violations of law within the
federal civil service). The Board's primary function is
to review federal employee appeals of adverse actions
"which [are] appealable to the Board under any law,
rule, or regulation," including those related to
removal or suspension for periods greater than
fourteen days. 5 U.S.C. § 7701(a); see also id. §
1204(a)(1).
These
adjudications
consume
approximately 95 percent of MSPB members' time.
See Pl.'s Statement of Undisputed Material Facts ¶ 54
96a
("SUMF"), ECF No. 22-2. The Board may order
federal agencies and employees to comply with its
decisions, see 5 U.S.C. § 1204(a)(2), which are
nonetheless subject to judicial review. See id. § 7703.
The MSPB thus acts as a preliminary adjudicator of
these employment disputes, with federal courts
providing the final say if the parties so desire.
The MSPB carries out other limited tasks in pursuit
of its mission. It conducts studies "relating to the civil
service" for the President and Congress, see 5 U.S.C.
§ 1204(a)(3), although this function takes up less
than one percent of members' time, see SUMF ¶ 62.
The Board may also review "rules and regulations of
the Office of Personnel Management," see id. §
1204(a)(4), on its own motion, following a complaint
from the Special Counsel, or in response to a third
party's petition, see id. § 1204(f)(1). The MSPB may
invalidate the rule or its implementation if it would
require a federal employee to engage in prohibited
personnel practices. See id. § 1204(f)(2).1
Members of the MSPB are "appointed by the
President, by and with the advice and consent of the
Senate," and "not more than 2 of [the members] may
be adherents of the same political party." CSRA § 202
(codified at 5 U.S.C. § 1201). Members of the MSPB
are appointed to seven-year terms that may be
extended by up to one year if a successor has not yet
been appointed. Id. (codified at 5 U.S.C. § 1202(a)-(c)).
"Any member may be removed by the President only
1 Harris explains that invalidation of an Office of Personnel
Management rule under this mechanism "is an exceedingly rare
occurrence" that has not happened during her tenure. Harris
Decl. ¶ 31, ECF No. 22-3.
97a
for inefficiency, neglect of duty, or malfeasance in
office." Id. (codified at 5 U.S.C. § 1202(d)).
B. Factual and Procedural Background
President Joseph R. Biden nominated Harris to be a
member of the MSPB in January 2022. SUMF ¶ 1.
The Senate confirmed her on May 25, 2022, and she
was sworn in on June 1, 2022. Id. ¶ 2. Her term
expires on March 1, 2028. Id. ¶ 3. The Senate later
confirmed Harris as Chairman, and she was sworn in
as Chairman on March 14, 2024. Id. ¶¶ 4-5.
Defendants do not dispute that Harris has been
efficient and effective in her role at the MSPB. See id.
¶ 8. When the MSPB's quorum was restored in March
2022, the agency had a backlog of approximately
3,800 cases that had accrued since 2017, and officials
estimated that it would take five or six years for the
agency to catch up. Id. ¶¶ 12-14. By January 2025,
however, the MSPB had cleared nearly 99 percent of
its backlog. Id. ¶ 20. From June 1, 2022, to February
10, 2025, Harris participated in nearly 4,500
decisions. Id. ¶ 10.
On February 10, 2025, Harris received an email
from Trent Morse, Deputy Assistant to the President
and the Deputy Director of the White House
Presidential Personnel Office, which stated in its
entirety:
On behalf of President Donald J. Trump, I am
writing to inform you that your position on the
Merit Systems Protection Board is terminated,
effective immediately. Thank you for your service[.]
Ex. 4 to Pl.'s Mot. for Prelim. Inj. and J. on the Merits,
ECF No. 22-4. The communication did not explain the
basis for Harris's termination.
98a
Harris filed this lawsuit on February 11, 2025,
claiming that her firing was ultra vires,
unconstitutional,
and
a
violation
of
the
Administrative Procedure Act ("APA"). See Compl. ¶¶
31-37, 40-41, ECF No. 1. She seeks relief under the
Declaratory Judgment Act, issuance of a writ of
mandamus, and equitable relief. See id. ¶¶ 38-39, 4246. Harris additionally filed a motion for a temporary
restraining order, see Pl.'s Mot. for TRO, ECF No. 2,
which Defendants opposed, see Defs.' Opp'n to Mot.
for TRO, ECF No. 6. The Court held a hearing on the
TRO motion on February 13, 2025, and granted the
motion on February 18, 2025. See Min. Entry dated
Feb. 13, 2025; Order Granting Pl.'s Mot. for TRO,
ECF No. 8; Mem. Op. Granting Pl.'s Mot. for TRO
("Mem. Op."), ECF No. 9. Defendants appealed that
order to the D.C. Circuit, and the appeal remains
pending. See Notice of Appeal, ECF No. 15.
On February 19, 2025, the parties filed a joint status
report indicating that the Court's consideration of the
subsequent motion for preliminary injunction should
be consolidated with the merits of the case pursuant
to Federal Rule of Civil Procedure 65(a)(2). See Joint
Status Report, ECF No. 13. On February 23, 2025,
Harris filed a motion for a prelimi
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