Petition for Writ of Certiorari — Gwynne A. Wilcox, Petitioner v. Donald J. Trump, President of the United States, et al.

Supreme Court briefSep 15, 2025

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APPENDIX

TABLE OF CONTENTS

Appendix A Order of the United States Court of

Appeals for the D.C. Circuit En

Banc Vacating Emergency Stay

Order and Denying Stay Pending

Appeal (Apr. 7, 2025) ........................ App. 1a

Appendix B Order of the United States Court of

Appeals for the D.C. Circuit

Granting Emergency Stay Motions

(Mar. 28, 2025) ................................. App. 21a

Appendix C Order of the United States District

Court for the District of D.C.

Granting Plaintiff’s Motion for

Summary Judgment and

Denying Defendants’ Cross Motion

for Summary Judgment

(March 6, 2025) .............................. App. 140a

Appendix D Memorandum Opinion of the United

States District Court for the

District of D.C. Granting Plaintiff’s

Motion for Summary Judgment and

Denying Defendants’ Cross Motion

for Summary Judgment (March 6,

2025) ................................................ App. 143a

Appendix E Order of the United States District

Court for the District of D.C.

Denying Defendants’ Motion for

Stay (March 8, 2025) ..................... App. 190a

-App. 1a-

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 25-5037

September Term, 2024

1:25-cv-00412-RC

Filed On: April 7, 2025

CATHY A. HARRIS, in her personal capacity and

in her official capacity as Member of the Merit

Systems Protection Board,

Appellee,

SCOTT BESSENT, in his official capacity as

Secretary of the Treasury, et al.,

Appellants.

Consolidated with 25-5055

-App. 2aNo. 25-5057

1:25-cv-00334-BAH

GWYNNE A. WILCOX,

Appellee,

DONALD J. TRUMP, in his official capacity as

President of the United States and Marvin E.

Kaplan, in his official capacity as Chairman of

the National Labor Relations Board,

Appellants.

BEFORE: Srinivasan*, Chief Judge, and Henderson**,

Millett, Pillard, Wilkins, Katsas**, Rao**,

Walker**, Childs, Pan, and Garcia, Circuit

Judges

ORDER

Upon consideration of the petitions for hearing en

banc, which include motions for en banc reconsideration

and vacatur of the court's March 28, 2025 order granting

the government's motions for a stay pending appeal, and

the combined opposition thereto, which includes a request

for a 7-day stay if the motions are granted, it is

-App. 3aORDERED that the motions for en banc

reconsideration and vacatur be granted and the

government's motions for a stay pending appeal be denied.

In Humphrey's Executor v. United States, 295 U.S.

602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), and Wiener v.

United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d

1377, 142 Ct. Cl. 932 (1958), the Supreme Court

unanimously upheld removal restrictions for government

officials on multimember adjudicatory boards. While two

laws governing removal restrictions for single heads of

agencies exercising executive policymaking and

enforcement powers have been held unconstitutional, see

Seila Law v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 207 L.

Ed. 2d 494 (2020); Collins v. Yellen, 594 U.S. 220, 141 S.

Ct. 1761, 210 L. Ed. 2d 432 (2021), the Supreme Court has

repeatedly stated that it was not overturning the

precedent established in Humphrey's Executor and

Wiener for multimember adjudicatory bodies. Instead,

the Supreme Court has, in its own words, left that

precedent "in place[.]" Seila Law, 591 U.S. at 215 (2020);

see id. at 228 ("not revisit[ing] Humphrey's Executor");

Collins, 594 U.S. at 250-251 (2021) (recognizing that Seila

Law did "not revisit [] prior decisions") (quoting Seila

Law, 591 U.S. at 204); see also Morrison v. Olson, 487 U.S.

654, 687, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) (in case

involving restrictions on removal of an inferior officer,

recognizing that Humphrey's Executor remains good

law); see generally Free Enter. Fund v. Public Acct.

Oversight Bd., 561 U.S. 477, 483, 130 S. Ct. 3138, 177 L.

Ed. 2d 706 (2010) (in case involving multimember board,

declining to "reexamine" Humphrey's Executor); id. at 501

("[W]e do not * * * take issue with for-cause limitations in

general[.]").

-App. 4aThe Supreme Court has repeatedly told the courts of

appeals to follow extant Supreme Court precedent unless

and until that Court itself changes it or overturns it. If a

precedent of the Supreme Court "has direct application in

a case," lower courts "'should follow the case which directly

controls,'" leaving to the Supreme Court "'the prerogative

of overruling its own decisions.'" Mallory v. Norfolk S. Ry.

Co., 600 U.S. 122, 136, 143 S. Ct. 2028, 216 L. Ed. 2d 815

(2023)

(quoting

Rodriguez

Quijas

Shearson/American Express, Inc., 490 U.S. 477, 484, 109

S. Ct. 1917, 104 L. Ed. 2d 526 (1989)). That rule governs

"even if the lower court thinks the precedent is in tension

with 'some other line of decisions.'" Mallory, 600 U.S. at

136 (quoting Rodriguez de Quijas, 490 U.S. at 484); see

also Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997,

138 L. Ed. 2d 391 (1997) ("We do not acknowledge, and we

do not hold, that other courts should conclude our more

recent cases have, by implication, overruled an earlier

precedent.").

Circuit precedent compels the same result. See, e.g.,

National Security Archive v. CIA, 104 F.4th 267, 272 n.1

(D.C. Cir. 2024) ("This Court is charged with following

case law that directly controls a particular issue[.]"); Shea

v. Kerry, 796 F.3d 42, 54, 418 U.S. App. D.C. 42 (D.C. Cir.

2015) (quoting Agostini, 521 U.S. at 237); Sierra Club v.

E.P.A., 322 F.3d 718, 725, 355 U.S. App. D.C. 258 (D.C.

Cir. 2003) (quoting Rodriguez de Quijas, 490 U.S. at 484).

The Supreme Court's repeated and recent statements

that Humphrey's Executor and Wiener remain

precedential require denying the government's

emergency motions for a stay pending appeal. The

government, in fact, has acknowledged a lack of clarity in

the law. See Oral Arg. Tr. 24:25-25:3 ("I'm not saying that

-App. 5a[the Supreme Court has been] clear."); 10:24-11:5 ("[T]he

Supreme Court has left the lower courts in something of a

tough spot[.]"); 84:16-23 (There is, "at a minimum, a very

substantial question" and "reasonable minds can differ"

about the scope of Humphrey's Executor today.); 88:17-18

("[T]here's some uncertainty" in the wake of Collins.). In

addition, at both parties' request, the court has set a highly

expedited schedule for the merits of these appeals that will

allow the cases to be resolved in short order.

We hereby vacate the March 28, 2025 order staying the

district courts' final judgments and permanent injunctions

in these cases. In light of the precedent in Humphrey's

Executor and Wiener concerning multimember

adjudicatory bodies, the government's motions for a stay

pending appeal are denied. The government has not

demonstrated the requisite "strong showing that [it] is

likely succeed on the merits" of these two appeals. Nken v.

Holder, 556 U.S. 418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d

550 (2009). The government likewise has not shown a

strong likelihood of success on the merits of its claim that

there is no available remedy for Harris or Wilcox, or that

allowing the district court's injunctions to remain in place

pending appeal is impermissible. See Panel Order

Granting Stay at 41-46 (Millett, J., dissenting). Nor has it

demonstrated irreparable injury because the claimed

intrusion on presidential power only exists if Humphrey's

Executor and Wiener are overturned. See Wiener, 357

U.S. at 356 ("[N]o such power" to remove a predominantly

adjudicatory board official "is given to the President

directly by the Constitution[.]"); Humphrey's Executor,

295 U.S. at 629. It is

FURTHER ORDERED that the request for a 7-day

stay be denied.

-App. 6aPer Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Laura M. Morgan

Deputy Clerk

***

-App. 7aKAREN LECRAFT

dissenting:

HENDERSON,

Circuit

Judge,

We do the parties (especially a functioning executive

branch) no favors by unnecessarily delaying Supreme

Court review of this significant and surprisingly

controversial aspect of Article II authority. Only the

Supreme Court can decide the dispute and, in my opinion,

the sooner, the better.

-App. 8aRAO, Circuit Judge, dissenting: President Donald

Trump removed two principal officers wielding significant

executive power: Cathy Harris of the Merit Systems

Protection Board and Gwynne Wilcox of the National

Labor Relations Board. The district court held the

removals were unlawful and imposed unprecedented and

far reaching injunctions, ordering cabinet secretaries and

other Executive Branch officials to treat Harris and

Wilcox as if they were never removed. A panel of this court

wisely stayed those orders pending appeal. A majority of

the en banc court now vacates the panel's order and denies

the stay pending appeal.

The government raises two independent grounds for

granting a stay. The en banc majority briefly discusses the

first: the lawfulness of the President's removal of these

officers. In my view, a stay is warranted on this ground.

But even accounting for disagreement as to the continuing

validity of Humphrey's Executor, the district court's

remedial overreach independently justifies a stay.

Because the majority denies the stay, it should have

explained why the government is not likely to prevail on

its argument that the injunctions exceed the court's

equitable authority. Instead, the order devotes a

single sentence to this question, likely because these

remedies have no historical basis and put the courts on a

collision course with the President over his exercise of

core executive power. I respectfully dissent.

***

As to the constitutional question, the government is

likely to succeed because the President's removal of

Harris and Wilcox falls within his Article II authority. The

Constitution vests all executive power in a single

President. U.S. Const. art. II, § 1. The President has both

-App. 9athe power and the responsibility to supervise and direct

Executive Branch officers. Id. § 3 (requiring the President

to "take Care that the Laws be faithfully executed"). To

carry out this responsibility, the President must be able to

remove officers at will. "Since 1789, the Constitution has

been understood to empower the President to keep ...

officers accountable—by removing them from office, if

necessary." Free Enter. Fund v. Pub. Co. Acct. Oversight

Bd., 561 U.S. 477, 483, 130 S. Ct. 3138, 177 L. Ed. 2d 706

(2010) (citing Myers v. United States, 272 U.S. 52, 47 S.

Ct. 21, 71 L. Ed. 160 (1926)); see also Seila Law LLC v.

CFPB, 591 U.S. 197, 140 S. Ct. 2183, 2191, 207 L. Ed. 2d

494 (2020) (explaining that without the removal power "the

President could not be held fully accountable for

discharging his own responsibilities") (cleaned up).

The en banc majority urges that we must continue to

follow Humphrey's Executor v. United States, 295 U.S.

602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), and Wiener v.

United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d

1377, 142 Ct. Cl. 932 (1958), which held Congress may

impose limits on the President's ability to remove

officers of some so-called independent agencies. Although

those cases have not been formally overruled, a series of

recent Supreme Court decisions has substantially eroded

them, as Judge Walker explained. See Harris v. Bessent,

No. 25-5037, 2025 WL 980278, at *7-13 (D.C. Cir. Mar. 28,

2025) (Walker, J., concurring); see also id. at *21-23

(Henderson, J., concurring) (concluding "reasonable

minds can—and often do—disagree about the ongoing

vitality of the Humphrey's exception"). Under Article II,

"[t]he buck stops with the President," and he "therefore

must have some power of removing those for whom he

cannot continue to be responsible." Free Enter. Fund, 561

U.S. at 493 (cleaned up). While statutes provide for-cause

-App. 10aremoval protections for Harris and Wilcox, these

restrictions are likely unconstitutional because they

interfere with the President's authority to remove

principal officers who execute the law.

I will not elaborate on these points in this posture, as

the disagreement about the scope of the President's

removal power was discussed at length in the panel

opinions granting the stay.

***

That brings us to the second ground for granting a stay

pending appeal: the district court's expansive and

unprecedented injunctions. Since the panel majority

granted the stay on constitutional grounds, it had no need

to evaluate the likelihood the government would succeed

on its challenge to the injunctive remedies. See Harris,

2025 WL 980278, at *2 n.10 (Walker, J., concurring). The

en banc majority, however, is denying the stay and

therefore should at least have explained why the

government's challenge to the remedy fails. Even if the

majority is right that Harris and Wilcox were unlawfully

removed under current Supreme Court precedent, there

is a wholly separate question of whether reinstatement,

effectuated by enjoining scores of Executive Branch

officials, is the proper remedy.

In its rush to vacate the panel's stay and get Harris

and Wilcox back to work, the en banc majority essentially

ignores this question and assumes Harris and Wilcox may

be restored to their offices through a judicially imposed

fiction—namely, injunctions directing agency officials to

treat Harris and Wilcox as though they remain in office.

The district court's injunctions present difficult and

novel questions about the remedial authority of the Article

-App. 11aIII courts in the context of the President's exercise of his

Article II powers. See Dellinger v. Bessent, No. 25-5028,

2025 WL 559669, at *12 (D.C. Cir. Feb. 15, 2025) (Katsas,

J., dissenting) (noting the "extraordinary character" of an

order "direct[ing] the President to recognize and work

with an agency head whom he has already removed"). The

government is likely to succeed on its remedial challenge

because the injunctive relief concocted by the district

court is wholly unprecedented and transgresses historical

limits on our equitable authority.

It is worth recounting the broad sweep of the

injunctions imposed here. Harris and Wilcox are no longer

in office. The district court purported to reinstate these

officers by simply declaring they were never removed in

the first place and ordering Executive Branch officials to

play along. For Wilcox, the district court ordered the

Chairman of the NLRB "and his subordinates, agents, and

employees" to refrain "from removing [Wilcox] from her

office without cause or in any way treating [Wilcox] as

having been removed from office, from impeding in any

way her ability to fulfill her duties as a member of the

NLRB, and from denying or obstructing her authority or

access to any benefits or resources of her office." Wilcox

v. Trump, No. 25-334, 2025 WL 720914, at *18 (D.D.C.

Mar. 6, 2025) (emphasis added). It further ordered these

same officials to provide Wilcox access to government

facilities and equipment to carry out her duties. Id. The

injunction for Harris is similarly novel, prohibiting the

Secretary of the Treasury and numerous other Executive

Branch officers from "removing Harris from her office

without cause or in any way treating her as having been

removed without cause." Harris v. Bessent, No. 25-412,

2025 WL 679303, at *16 (D.D.C. Mar. 4, 2025) (emphasis

added). The order enjoins those same officials from

-App. 12a"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." Id.

These injunctions are formally directed at Executive

Branch officials, not the President. But in reality, their

prohibitions include actions only the President may take.

By what remedial fiction can the district court enjoin the

Chairman of the NLRB or the Treasury Secretary from

removing officers they have no power to remove? No one

suggests anyone other than the President has authority to

remove these principal officers. By what remedial fiction

can the district court enjoin executive officers from

choosing a replacement for Harris? Members of the Merit

Systems Protection Board must be appointed by the

President with the advice and consent of the Senate. See 5

U.S.C. § 1201. When a decision, like appointment or

removal, "is by Constitution or law conferred upon [the

President], ... we are precluded from saying that it is, in

practical effect, the decision of someone else." Franklin v.

Massachusetts, 505 U.S. 788, 825, 112 S. Ct. 2767, 120 L.

Ed. 2d 636 (1992) (Scalia, J., concurring in part and

concurring in the judgment). The injunctions purport to

enjoin the President's subordinates, directing them to

disregard the President's removal and to refrain from

taking actions within the President's exclusive

constitutional and statutory powers. There is simply no

precedent for such expansive judicial directives against

officers of the Executive Branch wielding essential

executive powers.1

Plaintiffs identify only two district court decisions enjoining

Presidential removal decisions. See Berry v. Reagan, No. 83-3182, 1983 WL

538, at *6 (D.D.C. Nov. 14, 1983); Mackie v. Bush, 809 F. Supp. 144, 148

-App. 13aThese orders effectively reappoint officers removed by

the President and direct all other Executive Branch

officials to treat the removed officers as if they were still

in office. Such injunctive relief is beyond the scope of our

equitable authority. Federal courts have authority to issue

only those equitable remedies administered by the

English Court of Chancery and courts sitting in equity at

the time of the Founding. See Grupo Mexicano de

Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 31819, 119 S. Ct. 1961, 144 L. Ed. 2d 319 (1999) ("[T]he equity

jurisdiction of the federal courts is the jurisdiction in

equity exercised by the High Court of Chancery in

England at the time of the adoption of the Constitution

and the enactment of the original Judiciary Act .... The

substantive prerequisites for obtaining an equitable

remedy ... depend on traditional principles of equity

jurisdiction.") (cleaned up); Boyle v. Zacharie, 31 U.S. (6

Pet.) 648, 658, 8 L. Ed. 532 (1832) ("[T]he settled doctrine

of this court is, that the remedies in equity are to be

administered ... according to the practice of courts of

equity in [England].").

Nothing in Anglo-American history supports the

injunctive relief granted by the district court and restored

by the en banc majority. Although the injunctions are

nominally directed at subordinate executive officials, their

purpose and effect are to restrain the President's exercise

of his constitutional appointment and removal powers. But

courts have never possessed authority to "enjoin the

(D.D.C. 1993). We vacated Mackie as moot without reaching the merits.

Mackie v. Clinton, No. 93-5001, 1993 WL 498033, at *1 (D.C. Cir. Oct. 27,

1993). More to the point, both cases directly contradict Supreme Court

precedent recognizing courts lack authority to enjoin the President. See

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L. Ed. 437 (1866);

Franklin, 505 U.S. at 802-03.

-App. 14aPresident in the performance of his official duties."2

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501, 18 L.

Ed. 437 (1866); see also Franklin, 505 U.S. at 827 (Scalia,

J., concurring) (describing this limitation as "implicit in

the separation of powers established by the Constitution").

Even indulging the fiction that the injunctions are

aimed only at subordinate executive officials, equitable

remedies of this kind still find no support in our history.

At the Founding, it appears to have been well-established

that a court sitting in equity had "no jurisdiction over the

appointment and removal of public officers."3 White v.

Berry, 171 U.S. 366, 377, 18 S. Ct. 917, 43 L. Ed. 199 (1898)

(quoting In re Sawyer, 124 U.S. 200, 212, 8 S. Ct. 482, 31

The Supreme Court has left open the possibility that a court may enjoin

the President to discharge a ministerial duty, that is, one in which the

President has no discretion. See Johnson, 71 U.S. at 498 (reserving the

question of whether "the President of the United States may be required, by

the process of this court, to perform a purely ministerial act under a positive

law"); Franklin, 505 U.S. at 802 (same). The President's exercise of his

appointment and removal authority can in no way be denominated as

"ministerial," however, as these powers are essential to his Article II power to

control and supervise "those who wield executive power on his behalf." Seila

Law, 140 S. Ct. at 2191; see also Johnson, 71 U.S. at 499 (distinguishing

ministerial duties from "purely executive and political" duties).

Equitable remedies were unavailable because courts of law had

exclusive jurisdiction to determine title to public office. See In re Sawyer, 124

U.S. 200, 212, 8 S. Ct. 482, 31 L. Ed. 402 (1888); Kalbfus v. Siddons, 42 App.

D.C. 310, 319-21 (1914) (collecting English and American cases granting

mandamus to restore an unlawfully removed officer). Although the Supreme

Court has more recently stated that courts are "not totally without authority

to grant interim injunctive relief" directing the reinstatement of wrongfully

terminated federal employees, see, e.g., Sampson v. Murray, 415 U.S. 61, 63,

94 S. Ct. 937, 39 L. Ed. 2d 166 (1974), such cases do not necessarily raise the

same constitutional concerns as judicial reinstatement of an officer removed

by the President. Even in cases involving mere employees, the Court has

warned that an injunction will issue only upon a heightened showing. Id. at

83-84. Insofar as these decisions go beyond the scope of equity jurisdiction at

the time of the Founding, they conflict with the Supreme Court's more recent

holding in Grupo. See 527 U.S. at 318-19.

-App. 15aL. Ed. 402 (1888)); see also Bessent v. Dellinger, 145 S. Ct.

515, 517, 221 L. Ed. 2d 226 (2025) (Gorsuch, J., dissenting).

The lesson from history is clear: Federal courts have no

equitable authority to enjoin the removal or to mandate

the reinstatement of executive officers.

Perhaps recognizing these limits on our equitable

authority, officers challenging their removals have

generally refrained from seeking injunctions mandating

their reinstatement. The removed officers have instead

brought backpay actions for damages. See, e.g., Wiener,

357 U.S. at 349-50; Humphrey's Executor, 295 U.S. at 618;

Myers, 272 U.S. at 106. The en banc majority binds itself

to the mast of Humphrey's Executor and Wiener with

respect to the constitutional merits but says nothing about

these precedents on the question of remedies.

***

Finally, the district court and Judge Millett in her

panel dissent suggest Harris and Wilcox could secure a

writ of mandamus if injunctive relief were unavailable. But

it is extremely unlikely that mandamus could issue to

reinstate officers removed by the President.

As a threshold matter, against whom would mandamus

lie? These cases seem to present two options: The court

could issue mandamus against the President to reinstate

the officers, or it could issue mandamus against everyone

else in the Executive Branch to act as if the President has

reinstated the officers. The district court here would

apparently have done the latter, directing various

principal officers and their subordinates—but not the

President—to recognize that Harris and Wilcox remain in

-App. 16aoffice.4 See Harris, 2025 WL 679303, at *15; Wilcox, 2025

WL 720914, at *16 n.22. A writ of mandamus, however,

may be issued only when an official violates a "clear duty

to act." Muthana v. Pompeo, 985 F.3d 893, 910, 450 U.S.

App. D.C. 364 (D.C. Cir. 2021). No Executive Branch

officer or employee, not even the Treasury Secretary or

the Chairman of the NLRB, could have violated a clear

duty because no officer or employee removed Harris or

Wilcox—the President did. If mandamus were to issue

against these officers, there would be a complete

mismatch between the supposedly unlawful removal and

the officers being targeted with mandamus.

That leaves the President. Judge Millett argued in

dissent that mandamus could issue against the President

because he "violated a non-discretionary statutory duty by

firing Harris and Wilcox without relevant justification."

See Harris, 2025 WL 980278, at *45 (Millett, J.,

dissenting). It is extremely doubtful that mandamus could

issue against the President. While this court has at times

claimed authority to issue writs of mandamus against the

President, I am aware of no case in which we have taken

this extraordinary step. To the contrary, we have

repeatedly declined to issue the writ "in order to show the

utmost respect to the office of the Presidency and to avoid

... any clash between the judicial and executive branches

Although our decision in Swan v. Clinton contemplates that de facto

reinstatement via mandamus issued against Executive Branch officials may

be available, that determination was made in the context of finding

redressability for the purposes of standing. The court denied relief on the

merits, so it never imposed this extraordinary relief. See 100 F.3d 973, 976-81,

988, 321 U.S. App. D.C. 359 (D.C. Cir. 1996); see also Severino v. Biden, 71

F.4th 1038, 1042-43, 461 U.S. App. D.C. 313 (D.C. Cir. 2023) (reaffirming

Swan's redressability analysis). Moreover, Swan says nothing about when it

would be appropriate to impose mandamus. In any event, the en banc court

is not bound by Swan's analysis.

-App. 17aof the Government." Nat'l Treasury Emps. Union v.

Nixon, 492 F.2d 587, 616, 160 U.S. App. D.C. 321 (D.C.

Cir. 1974); see also Nat'l Wildlife Fed'n v. United States,

626 F.2d 917, 928, 200 U.S. App. D.C. 53 (D.C. Cir. 1980)

(declining to issue mandamus against the President).

Even if mandamus could lie against the President, it is

unlikely Harris and Wilcox could have established a "clear

right to relief." Muthana, 985 F.3d at 910. Given the

substantial questions regarding whether Humphrey's

Executor remains good law, it is hard to see how the

plaintiffs could have shown their removal from office "was

so plainly and palpably wrong as [a] matter of law that the

writ should issue." United States ex rel. Chicago Great W.

R. Co. v. Interstate Commerce Comm'n, 294 U.S. 50, 61, 55

S. Ct. 326, 79 L. Ed. 752 (1935). Moreover, Harris and

Wilcox have failed to identify a single case in which

mandamus has been granted when an officer contests his

removal by the President. At a minimum, the fact that

such a remedy has never been imposed, much less against

the President, is good evidence that Harris and Wilcox do

not have a clear entitlement to the writ.

Furthermore, it is difficult to see how mandamus to

reinstate officers removed by the President could ever be

appropriate. "Although the remedy by mandamus is at

law, its allowance is controlled by equitable principles, and

it may be refused for reasons comparable to those"

governing a court of equity. United States ex rel.

Greathouse v. Dern, 289 U.S. 352, 359, 53 S. Ct. 614, 77 L.

Ed. 1250 (1933) (cleaned up). For this court to order the

performance of executive acts vested exclusively in the

President would "at best create[] an unseemly appearance

of constitutional tension and at worst risk[] a violation of

the constitutional separation of powers." Swan, 100 F.3d

-App. 18aat 978; see also Johnson, 71 U.S. at 499 (rebuffing the idea

of ordering the President to perform executive acts as "an

absurd and excessive extravagance") (cleaned up). These

constitutional

concerns

render

mandamus—an

extraordinary writ—wholly inappropriate in these

removal cases.

***

The Constitution creates three co-equal departments

of government, each with an independent responsibility to

interpret and uphold the Constitution. While courts must

faithfully exercise their duty to say what the law is, in

choosing remedies, courts historically have afforded every

measure of respect to the President. Sound judgment

demands that when contemplating coercive process

against the Executive, the courts take account of the

"enduring consequences upon the balanced power

structure of our Republic." Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 634, 72 S. Ct. 863, 96 L. Ed. 1153,

62 Ohio Law Abs. 417 (1952) (Jackson, J., concurring).

Without considering the difficult questions regarding

the scope of the court's equitable or legal authority, the en

banc majority blesses the district court's unprecedented

injunctions and purports to reinstate principal officers

ousted by the President. In so doing, the majority

threatens to send this court headlong into a clash with the

Executive. I respectfully dissent.

-App. 19aWALKER, Circuit Judge, dissenting:

Having explained my views previously, I add only this:

In PHH v. CFPB, the en banc court said that the Supreme

Court would need to narrow Humphrey's Executor in

order to hold that the CFPB's removal restrictions are

unconstitutional.1 Then, in Seila Law, the Supreme Court

held those restrictions unconstitutional.2 So by the PHH

majority's own reasoning, the outcome in Seila Law

depended on the Supreme Court narrowing Humphrey's

Executor.

Perhaps the members of today's en banc majority

recognize that Humphrey's Executor cannot be read as

broadly as it once could but disagree with the panel in

this case about how much it has been narrowed. If so, it

is hollow and hyperbolic for today's majority to proclaim,

"The Supreme Court has repeatedly told the courts of

See 881 F.3d 75, 93, 434 U.S. App. D.C. 98 (D.C. Cir. 2018) ("There is

nothing constitutionally suspect about the CFPB's leadership structure.

Morrison and Humphrey's Executor stand in the way of any holding to the

contrary."); id. at 113 (Tatel, J., concurring, joined by Millett, J., and Pillard,

J.) ("PHH is free to ask the Supreme Court to revisit Humphrey's Executor

and Morrison, but that argument has no truck in a circuit court of appeals.");

id. at 118 (Wilkins, J., concurring, joined by Rogers, J.) ("the dissenters seek

to overcome the precedent upholding tenure protection for officers with

significant quasi-judicial and quasi-legislative responsibilities").

Similarly, in Free Enterprise Fund v. PCAOB, the majority said the

"bulk of the Fund's challenge to the Act was fought — and lost — over seventy

years ago when the Supreme Court decided Humphrey's Executor." 537 F.3d

667, 685, 383 U.S. App. D.C. 119 (D.C. Cir. 2008). The Supreme Court

disagreed. Free Enterprise Fund v. PCAOB, 561 U.S. 477, 514, 130 S. Ct.

3138, 177 L. Ed. 2d 706 (2010) ("While we have sustained in certain cases limits

on the President's removal power, the Act before us imposes a new type of

restriction — two levels of protection from removal for those who nonetheless

exercise significant executive power. Congress cannot limit the President's

authority in this way.").

Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 2197, 207 L. Ed.

2d 494 (2020).

-App. 20aappeals to follow extant Supreme Court precedent unless

and until that Court itself changes it or overturns it."

Each of us recognizes that a lower court cannot overrule

Humphrey's Executor. We simply disagree about how

broadly to read it.

-App. 21a-

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 25-5037

September Term, 2024

1:25-cv-00412-RC

Filed On: March 28, 2025

CATHY A. HARRIS, in her personal capacity and

in her official capacity as Member of the Merit

Systems Protection Board,

Appellee,

SCOTT BESSENT, in his official capacity as

Secretary of the Treasury, et al.,

Appellants.

Consolidated with 25-5055

-App. 22aNo. 25-5057

1:25-cv-00334-BAH

GWYNNE A. WILCOX,

Appellee,

DONALD J. TRUMP, in his official capacity as

President of the United States and Marvin E.

Kaplan, in his official capacity as Chairman of

the National Labor Relations Board,

Appellants.

BEFORE: Henderson, Millett*, and Walker, Circuit

Judges

ORDER

Upon consideration of the emergency motions for stay

filed in Nos. 25-5055 and 25-5057, the oppositions thereto,

the replies, and the briefs filed by amici curiae regarding

the stay motions; it is

Judge Millett dissents from the grant of the emergency motions

for stay.

-App. 23aORDERED that the emergency motions for stay be

granted. Separate concurring statements of Judge

Walker and Judge Henderson and a dissenting statement

of Judge Millett are attached.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

-App. 24aWALKER, Circuit Judge, concurring:

Article II of the Constitution vests the "executive

Power" in "a President of the United States" and requires

him to "take Care that the Laws be faithfully executed."1

"To protect individual liberty, the Framers . . . created a

President independent from the Legislative Branch."2 "To

further safeguard liberty, the Framers insisted upon

accountability for the exercise of executive power," so they

"lodged full responsibility for the executive power in a

President of the United States, who is elected by and

accountable to the people."3

Executive branch agencies do not disrupt that design

when they are accountable to the President. "But consent

of the governed is a sham if an administrative agency, by

design, does not meaningfully answer for its policies to

either of the elected branches."4 That's why the Supreme

Court has said that Congress cannot restrict the

President's removal authority over agencies that "wield

substantial executive power."5

That Court's precedents control this court's case.

Under those precedents, the Government is likely to

succeed in showing that the statutory removal protections

for National Labor Relations Board commissioners and

Merit Systems Protection Board members are

U.S. Const., art. II, §§ 1, 3.

Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689, 383 U.S.

App. D.C. 119 (D.C. Cir. 2008) (Kavanaugh, J., dissenting).

PHH Corp. v. CFPB, 881 F.3d 75, 164, 434 U.S. App. D.C. 98

(D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting).

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

Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 21992200, 207 L. Ed. 2d 494 (2020).

-App. 25aunconstitutional. The Government has also shown that it

will suffer irreparable harm each day the President is

deprived of the ability to control the executive branch.

Conversely, the removed officials suffer no cognizable

irreparable harm during the pendency of these appeals,

nor do the agencies where they previously worked until

the President fired them. Finally, the public interest also

supports a stay. The people elected the President to

enforce the nation's laws, and a stay serves that purpose

by allowing the people's chosen officer to control the

executive branch.

I therefore support granting the motions for a stay

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

v. Trump (25-5057).

I. Background

The National Labor Relations Board and the Merit

Systems Protection Board are executive branch agencies.

By the terms of statutes that the Government argues are

unconstitutional, their members may be removed only for

cause.6

On January 27, 2025, President Donald Trump

removed Gwynne Wilcox from the NLRB prior to her

term's expiration in 2028. In an explanatory letter, the

President informed Wilcox that the NLRB had not "been

operating in a manner consistent with the objectives of

[his] administration."7 Citing several recent Board

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

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

2025), ECF No. 10-4.

-App. 26adecisions, he expressed concern that Wilcox was "unduly

disfavoring the interests of employers."8

Wilcox sued for reinstatement on February 5, 2025.

Five days later, she moved for summary judgment on an

expedited basis. After a hearing on March 5, the district

court granted summary judgment to Wilcox, declaring

that she remained a member of the NLRB and

permanently enjoining the NLRB's Chair and his

subordinates from effectuating the President's removal

order.

A similar chain of events occurred in Harris v.

Bessent. On February 10, 2025, the President removed

Cathy Harris from the MSPB prior to her term's

expiration in 2028. Unlike Wilcox, Harris did not receive

an explanatory letter.

Harris sued for reinstatement on February 11, 2025.

Seven days later, the district court granted her request for

a temporary restraining order, effectively reinstating her

to the MSPB. A few weeks later, the court granted

summary judgment for Harris, declaring that she

remained a member of the MSPB and permanently

enjoining various government officials from executing the

President's removal order.

In defending these removals, the Government has not

argued that the President met the statutory criteria for

removal.9 Instead, it has insisted that those provisions are

unconstitutional infringements on the President's Article

Id.

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

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

notice and hearing, for neglect of duty or malfeasance in office, but for

no other cause").

-App. 27aII removal power — a position consistent with the

President's recent executive order regarding independent

agencies.10

On that basis, the Government appealed both orders

and moved for emergency stays pending appeal. We

considered the two motions together and heard oral

argument on March 18, 2025.

II. The Presidential Removal Power

Before addressing the stay factors, it is prudent to

address the text, history, and precedents that control this

preliminary merits determination.

A. History

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

the creation of our Constitution, and the historical practice

in the decades that followed.

1. The Energetic Executive

Under the Articles of Confederation, the early

Republic experienced the perils of having a weak

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

Agencies (Feb. 18, 2025), https://www.federalregister.gov/

d/2025-03063.

The Government also maintains that federal district courts

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

by the President. Because this court grants the Government's stay

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

argument. Cf. Bessent v. Dellinger, 145 S. Ct. 515, 517, 221 L. Ed. 2d

226 (2025) (Gorsuch, J., dissenting) (observing that "by the 1880s [the

Supreme] Court considered it 'well settled that a court of equity has

no jurisdiction over the appointment and removal of public officers'"

(quoting In re Sawyer, 124 U.S. 200, 212, 8 S. Ct. 482, 31 L. Ed. 402

(1888))); Dellinger v. Bessent, No. 25-5028, 2025 WL 559669, at *14

(D.C. Cir. Feb. 15, 2025) (Katsas, J., dissenting) (reinstating a

principal officer is "virtually unheard of").

-App. 28aexecutive. With "no executive separate from Congress,"11

the federal government had to rely on the states' good

graces to carry out national policies.12 And it was

powerless to respond to national emergencies, like the

1786 Shays' Rebellion.13 As Henry Knox put it, the federal

government was but "a shadow without power, or effect."14

So when "the Framers met in Philadelphia in the

summer of 1787, they sought to create a cohesive national

sovereign in response to the failings of the Articles of

Confederation."15 But the Framers also understood that a

strong federal government could be abused. They

recognized that "structural protections" — most

significantly, the separation of powers — "were critical to

preserving liberty."16 By splitting the legislative,

executive, and judicial powers, and "giving to those who

administer each department the necessary constitutional

means and personal motives to resist encroachments of

the others," the federal government could avoid the

"gradual concentration of the several powers in the same

department."17

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

Pol'y 605, 607 (2020).

Printz v. United States, 521 U.S. 898, 919, 117 S. Ct. 2365, 138

L. Ed. 2d 914 (1997).

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

Letter from Henry Knox to George Washington (March 19,

1787), https://perma.cc/9UCC-ZYAP.

PennEast Pipeline Co. v. New Jersey, 594 U.S. 482, 141 S. Ct.

2244, 2263, 210 L. Ed. 2d 624 (2021).

Bowsher v. Synar, 478 U.S. 714, 730, 106 S. Ct. 3181, 92 L. Ed.

2d 583 (1986).

The Federalist No. 51 (James Madison).

-App. 29aAfter their experience with parliamentary supremacy,

the Framers were particularly concerned about the

concentration of legislative power.18 For example,

Gouverneur Morris warned delegates at the

Constitutional Convention that the "Legislature will

continually seek to aggrandize & perpetuate

themselves."19 Drawing on well-established political

traditions, the Framers divided Congress "into two

Chambers: the House of Representatives and the

Senate."20

Whereas the Framers divided the Legislative Power,

they unified the Executive. They were concerned that

"the weakness of the executive may require . . . that it

should be fortified."21 After the "humiliating weakness" of

the Articles of Confederation, the "Framers deemed an

energetic executive essential to 'the protection of the

community against foreign attacks,' 'the steady

administration of the laws,' 'the protection of property,'

and 'the security of liberty.'"22

Free Enterprise Fund v. PCAOB, 537 F.3d 667, 689, 383 U.S.

App. D.C. 119 (D.C. Cir. 2008) (Kavanaugh, J., dissenting).

James Madison's Notes of the Constitutional Convention (July

19, 1787), https://perma.cc/HU54-J7SU.

Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 2203, 207

L. Ed. 2d 494 (2020).

The Federalist No. 51.

First quoting Myers, 272 U.S. 52, 117, 47 S. Ct. 21, 71 L. Ed. 160

(1926); then quoting Seila Law, 140 S. Ct. at 2203 (quoting The

Federalist No. 70); see also Adam White, Chevron Deference v. Steady

Administration, Yale J. Reg.: Notice & Comment (Jan. 24, 2024),

https://perma.cc/8GLE-2JX4 ("Energetic presidents aren't inherently

good. Rather, presidential energy is good for a few important things—

especially, Hamilton argued, for 'the steady administration of the

-App. 30aThe Framers debated how to achieve that objective

while also avoiding the dangers of monarchy or tyranny.

Some delegates proposed a plural executive to limit the

concentration of power in any one person. For example,

Edmund Randolph pressed for a three-member executive

representing different regions of the country.23 And some

proposed that Congress should choose the Executive —

whether singular or plural.24

Ultimately, though, the Framers "'insisted' upon 'unity

in the Federal Executive' to 'ensure both vigor and

accountability' to the people."25 So they settled on a single

executive, the President of the United States, who "would

be personally responsible for his branch."26

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

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

executive's tendency "to conceal faults and destroy

responsibility."27 It also avoids "the 'habitual feebleness

laws.'").

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

Constitution 124 (3d ed. 2013).

Id. at 118, 127-28.

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

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

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

(2005); see also Clinton v. Jones, 520 U.S. 681, 712, 117 S. Ct. 1636,

137 L. Ed. 2d 945 (1997) (Breyer, J., concurring in the judgment)

("Article II makes a single President responsible for the actions of the

Executive Branch in much the same way that the entire Congress is

responsible for the actions of the Legislative Branch, or the entire

Judiciary for those of the Judicial Branch.").

The Federalist No. 70 (Alexander Hamilton).

-App. 31aand dilatoriness' that comes with a 'diversity of views and

opinions.'"28

At the same time, the Framers understood the risks

posed by a strong executive. Their solution? Making "the

President the most democratic and politically accountable

official in Government," subject to election "by the entire

Nation" every four years.29 The "resulting constitutional

strategy is straightforward: divide power everywhere

except for the Presidency, and render the President

directly accountable to the people through regular

elections."30

2. Original Understanding of the Removal Power

Against that backdrop, the Constitution assigns a lofty

role to the President. Article II vests the "executive

Power" in the "President of the United States of

America."31 And it charges the President to "take Care

that the Laws be faithfully executed."32

Of course, the President cannot carry out his duties

"alone and unaided" — he must enlist the "assistance of

subordinates."33 The Framers envisioned a "chain of

dependence" in the executive branch, where "the lowest

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

they ought, on the President."34 The Vesting Clause

empowers the President to direct and control those

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

Id.

U.S. Const. art. II, § 1.

Id. § 3.

Myers, 272 U.S. at 117.

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

-App. 32aofficials. As James Madison explained, "if any power

whatsoever is in its nature executive, it is the power of

appointing, overseeing, and controlling those who execute

the laws."35

That includes "a power to oversee executive officers

through removal."36 Because the Constitution provided no

textual limits on that "traditional executive power," "it

remained with the President."37

Founding-era history confirms that understanding.

The First Congress encountered the question directly,

and its debate and decision — now called "the Decision of

1789" — provides "contemporaneous and weighty

evidence of the Constitution's meaning since many of the

Members of the First Congress had taken part in framing

that instrument."38

During the summer of 1789 "ensued what has been

many times described as one of the ablest constitutional

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

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

("The text and structure of Article II provide the President with the

power to control subordinates within the executive branch.").

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

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

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

Id. (cleaned up).

The absence of a "removal clause" does not mean the

President lacks a removal power, just as the absence of a "'separation

of powers clause' or a 'federalism clause'" does not undercut those

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

Supreme Court has "explained many times before, the President's

removal power stems from Article II's vesting of the 'executive Power'

in the President." Id.

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

-App. 33adebates which has taken place."39 The topic of the

President's removal power came up "during consideration

of a bill establishing certain Executive Branch offices and

providing that the officers would be subject to Senate

confirmation and 'removable by the President.'"40

The House debated various theories, including that

Congress could specify the President's removal authority

on an office-by-office basis, that officers could be removed

only through impeachment, that removal required the

advice and consent of the Senate, and that the "executive

power" conferred plenary removal authority to the

President.41

The last view, advocated by James Madison, prevailed:

The "executive power included a power to oversee

executive officers through removal."42 To avoid giving the

impression that Congress had any say in the President's

removal decisions, the House deleted the bill's provision

making officers "removable by the President."43

In retrospect, the Decision of 1789 has been viewed as

"a legislative declaration that the power to remove officers

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

the President alone."44

Parsons v. United States, 167 U.S. 324, 329, 17 S. Ct. 880, 42 L.

Ed. 185, 32 Ct. Cl. 626 (1897).

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

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

Aditya Bamzai & Saikrishna Prakash, The Executive Power of

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

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

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

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

-App. 34a3. Historical Practice

The understanding that the President holds

unrestricted removal power "became widely accepted

during the first 60 years of the Nation."45 George

Washington removed "almost twenty officers, including a

consul, diplomats, tax collectors, surveyors, and military

officers."46 What's more, his commissions typically stated

that officeholders served during "the pleasure of the

President," indicating Washington's apparent belief that

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

important part of the American constitution" (quoting 5 John

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

The district court in Wilcox took a different view of the

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

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

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

See Myers, 272 U.S. at 114; Parsons, 167 U.S. at 328-30; Bowsher, 478

U.S. at 723; Free Enterprise Fund, 561 U.S. at 492; Seila Law, 140 S.

Ct. at 2197.

At least one amicus disputes the Supreme Court's settled

view of the historical evidence. Constitutional Accountability Center

Br. at 10-12. Although Alexander Hamilton originally took the

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

The Federalist No. 77 (Alexander Hamilton), he "later abandoned"

that "initial" view, Seila Law, 140 S. Ct. 2205. Likewise, "whatever

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

"the 'tenure' of 'ministerial offices generally will be a subject of legal

regulation,'" he later "led the charge" in defending the President's

removal authority during the Decision of 1789. Seila, 140 S. Ct. at 2205

n.10. Finally, the Court has "reject[ed]" Chief Justice Marshall's

statement in Marbury that some officers are not "removable at the

will of the executive" as "ill-considered dicta." Id. at 2205 (citing

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

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

dissenting).

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

-App. 35ahe could dismiss officers at will.47 Then-Secretary of State

Timothy Pickering — the official in charge of signing

commissions — confirmed the meaning of that language:

"In all cases except that of the Judges, it has been

established from the time of organizing the Government,

that removals from offices should depend on the pleasure

of the Executive power."48

Subsequent Presidents also dismissed officers at will,

often based on political disagreements. John Adams

removed Secretary Pickering over a disagreement about

America's alignment with France.49 (Yes, the same

Pickering who defended Washington's removal power.)

James Madison "compelled the resignation of" Secretary

of War John Armstrong following the War of 1812.50

Andrew Jackson removed Treasury Secretary William

Duane for his refusal to withdraw federal deposits from

the Second Bank of the United States.51 William Henry

Harrison intended to remove scores of Jacksonian officials

but died before he had the chance — just one month after

entering office.52 His successor, John Tyler, quickly

carried out Harrison's removal plans.53 Not to be outdone,

Id. at 1777-78.

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

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

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

Pickering to Monroe)).

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

Executive 62 (2008).

Id. at 79.

Id. at 106, 108.

Id. at 131-32.

Id. at 135.

-App. 36aMillard Filmore dismissed Zachary Taylor's entire

cabinet as his "first act in office."54

To be sure, these removals sometimes prompted minor

opposition from Congress. For example, after Jackson

removed Surveyor General Gideon Fitz, "the Senate

adopted a resolution requesting the President to

communicate" his reasons for firing Fitz to aid in the

Senate's "constitutional action upon the nomination of his

successor."55 Jackson refused to comply with what he

deemed "unconstitutional demands."56 Presidents in our

nation's first hundred years faced other similarly

halfhearted resolutions in response to their exercise of the

removal power.57

One exceptional case was the impeachment of Andrew

Johnson, following his removal of Secretary of War Edwin

Stanton.58 The impeachment charged Johnson with

violating the 1867 Tenure of Office Act, which required

Senate consent to remove officers.59 Much of Johnson's

defense centered on his view that the Act was

Id. at 148.

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

Id.

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

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

and reasons for removals").

Calabresi & Yoo, The Unitary Executive, at 185.

Id. at 179.

-App. 37aunconstitutional,60 a view the Supreme Court later

endorsed.61

The Senate narrowly acquitted Johnson.62 "The

contentious Johnson episode ended in a way that

discouraged congressional restrictions on the President's

removal power and helped preserve Presidential control

over the Executive Branch."63 It now "stands as one of the

most important events in American history in maintaining

the separation of powers ordained by the Constitution."64

A few decades later, another removal dispute arose

when Grover Cleveland dismissed U.S. Attorney Lewis

Parsons prior to the conclusion of Parsons' statutory fouryear term.65 Parsons argued that the President could not

remove him until the four-year term elapsed.66 The Court

disagreed. After recounting the Decision of 1789 and the

"continued and uninterrupted practice" of plenary

presidential removal, the Court construed Parsons' fouryear term as a ceiling for how long he could remain in

David Miller DeWitt, The Impeachment and Trial of Andrew

Johnson 445 (1903).

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

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

removing executive officers who had been appointed by him by and

with the advice and consent of the Senate").

Calabresi & Yoo, The Unitary Executive, at 186.

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

dissenting).

Id. at 692-93.

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

Id. at 328.

-App. 38aoffice — not as a restriction on the President's power to

remove him sooner.67

As this history demonstrates, the Founders

understood that the President had inherent, inviolable,

and unlimited authority to remove principal officers

exercising substantial executive authority, and Presidents

have exercised that authority since the very beginning of

the Republic, beginning with George Washington.

B. Precedent

With those historical underpinnings, I turn to the

Supreme Court's more recent precedents. The Court has

reaffirmed the President's inherent removal power on

several occasions, relying often on the historical evidence

recounted in the preceding section.

That is not to say the Court's removal-power

jurisprudence has always been consistent. Though the

Court in Myers reaffirmed the President's unilateral

removal power, Humphrey's Executor created an

exception to the rule. It left future courts to decide when

that exception might apply. To the extent that

Humphrey's created a showdown between the Myers rule

and the Humphrey's exception, the Court's recent

decisions have been unequivocal: Humphrey's has few, if

any, applications today. To discern the Supreme Court's

rule, I review the Court's holdings, beginning with Myers.

1. Myers

In 1920, President Woodrow Wilson removed

postmaster Frank Myers from office.68 Myers sought

backpay, relying on a statute that required the President

Id. at 338-39, 340.

Myers, 272 U.S. at 106.

-App. 39ato obtain Senate approval before removing him —

something the President had indisputably not done.69 The

question before the Court was whether the Constitution

permitted such a restriction.

Writing for the Court, Chief Justice Taft undertook a

deep historical survey, concluding that the statutory

provision denying the President the "unrestricted power

of removal" was "in violation of the Constitution and

invalid."70 That survey highlighted much of the history

recounted above, including the Decision of 1789. The

Court focused on four points advanced by James Madison

and his allies during that congressional debate.

First, Myers stressed that the President's supervisory

power over officers is crucial for protecting the separation

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

the legislative and executive powers ought to be

maintained with great caution, it is that which relates to

officers and offices."71 It further explained that to "take

care that the laws be faithfully executed," the President

must be able to "select those who were to act for him under

his direction" and remove "those for whom he cannot

continue to be responsible."72 The Court's conclusion:

"[N]o express limit was placed on the power of removal by

the executive" and "none was intended."73

Second, the Court considered whether the Senate's

role in presidential appointments carried with it a

corresponding role in removals. It concluded that history

Id. at 107-08.

Id. at 176.

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

Id. at 117, 122.

Myers, 272 U.S. at 118.

-App. 40awould not support that inference. The power of removal

"is different in its nature from that of appointment," as was

"pointed out" in the First Congress's debate.74 That's

because a Senate veto of a removal "is a much greater

limitation upon the executive branch, and a much more

serious blending of the legislative with the executive, than

a rejection of a proposed appointment."75 So where the

Constitution does not directly provide Congress any

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

Third, the Court observed that Congress's power to

create offices did not carry a corresponding power to limit

the President's removal power over them. The "legislative

power" is "limited to" the powers "enumerated" under

Article I of the Constitution; the "executive power" is a

"more general grant."77 Thus, the Court found it

"reasonable to suppose" that if the Founders "intended to

give to Congress power to regulate or control removals,"

they would have included those powers "among the

specifically enumerated legislative powers in article 1, or

in the specified limitations on the executive power in

article 2."78

Fourth and finally, the Court noted the threat that

Congress could "thwart[] the executive in the exercise of

his great powers and in the bearing of his great

responsibility by fastening upon him . . . men who" might

render his faithful execution of the laws "difficult or

impossible" — be it "by their inefficient service under him,

Id. at 121.

Id.

Id. at 128.

Myers, 272 U.S. at 128.

-App. 41aby their lack of loyalty to the service, or by their different

views of policy."79 To avoid this possibility, the moment

that the President "loses confidence in the intelligence,

ability, judgment, or loyalty of any one of [his

subordinates], he must have the power to remove him

without delay."80

The Court specifically included within that authority

the power to remove executive officers whose duties

include those "of a quasi judicial character."81 Though the

Court noted that "the President cannot . . . properly

influence or control" the discharge of such duties, he may

still "consider the decision after its rendition as a reason

for removing the officer. . . . Otherwise he does not

discharge his own constitutional duty of seeing that the

laws be faithfully executed."82

Myers was a landmark decision. It established that the

President's removal power is grounded in the

Constitution's text and history and bolstered by tradition.

It is essential to the constitutional separation of powers

and to the President's ability to "take Care that the Laws

be faithfully executed."83

2. Humphrey's Executor

Then came Humphrey's Executor.84 It reaffirmed the

core holding of Myers — that the President holds an

Id. at 131.

Id. at 134.

Id. at 135.

Id.

U.S. Const. art. I, § 3.

Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct.

869, 79 L. Ed. 1611 (1935).

-App. 42a"illimitable power of removal" over "purely executive

officers."85 But "in six quick pages devoid of textual or

historical precedent for the novel principle it set forth,"86

Humphrey's carved out an exception for agencies that

wield "no part of the executive power."87

According to the Court, that exception permitted

Congress to insulate officers of the relevant agency, the

Federal Trade Commission, from at-will removal. That

exception rested on the Court's characterization of the

FTC as an entity that exercised "no part of the executive

power" and that in no way acted as "an arm or an eye of

the executive."88 Instead, the Court viewed the agency as

"wholly disconnected from the executive department" —

"an agency of the legislative and judicial departments."89

Confronted with the 1935 FTC's role in investigating

and reporting violations of the law — responsibilities

typically associated with the executive branch — the

Court insisted that the 1935 FTC did not wield "executive

power in the constitutional sense," even if it performed an

"executive function."90 To justify the distinction, it

Id. at 627-28.

Morrison v. Olson, 487 U.S. 654, 726, 108 S. Ct. 2597, 101 L. Ed.

2d 569 (1988) (Scalia, J., dissenting).

Humphrey's Executor, 295 U.S. at 628.

Id.

Id. at 630.

Id. at 28.

I say the "1935 FTC" to distinguish it from the 2025 FTC,

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

Yellen, 594 U.S. 220, 141 S. Ct. 1761, 1806, 210 L. Ed. 2d 432 (2021)

(Sotomayor, J., concurring in part and dissenting in part) ("1935 FTC

did not [have] the power to impose fines").

-App. 43aclassified the agency's work as "neither political nor

executive, but predominantly quasi judicial and quasi

legislative."91

The Humphrey's Court conceded the ambiguity

inherent in its ruling, acknowledging a potential "field of

doubt" between Myers — where presidential removal

power over purely executive officers was absolute — and

Humphrey's, which permitted removal restrictions only if

an agency "exercise[d] no part of the executive power."92

Rather than clarifying the boundaries between these

categories, the Court explicitly deferred such questions

for "future consideration and determination."93

As the rest of this survey will show, subsequent

decisions by the Supreme Court have come close to closing

the gap that Humphrey's left. The Court has consistently

declined to extend Humphrey's beyond its facts and has

instead reaffirmed Myers as the default rule that occupies

the "field of doubt" for any agency that wields the

substantial executive power that Humphrey's understood

the 1935 FTC not to exercise.

3. Wiener

One might say Humphrey's had "one good year" in

1958, when the Court applied it in Wiener v. United

States.94 There, the Court "read a removal restriction into

Id. at 624.

Id. at 628, 632.

Id. at 632.

357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377, 142 Ct. Cl. 932

(1958); cf. Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev.

315, 322 (2000).

-App. 44athe War Claims Act of 1948" because the War Claims

Commission "was an adjudicatory body."95

The Wiener opinion took for granted that the

Commission was purely an adjudicatory body. Indeed, the

Commission's entire responsibility, in the Court's view,

consisted of "receiv[ing] and adjudicat[ing] . . . three

classes of claims" defined by statute.96 Nothing more. So

in Wiener, the Humphrey's exception continued

unchanged: Officers of agencies that do not exercise

executive power may be insulated from presidential

removal.

4. Free Enterprise Fund

The Court declined to extend Humphrey's in Free

Enterprise Fund v. PCAOB.97 That case involved a

challenge to the Public Company Accounting Oversight

Board's double-layer removal protections — its members

were removable only for cause by SEC commissioners

who in turn were removable only for cause.98

Reversing a panel decision of this court, the Supreme

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

Vesting Clause, the Take Care Clause, and the

Constitution's separation of powers.99 Multi-layered

removal protections rendered the President helpless to

"oversee the faithfulness of the officers who execute" the

432.

Collins, 594 U.S. 220, 141 S. Ct. 1761, 1783 n.18, 210 L. Ed. 2d

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

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

4102)).

561 U.S. 477, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010).

Id. at 487.

Id. at 484, 492.

-App. 45alaw.100 If an inferior officer performed poorly, the

President could not remove him; nor could the President

remove the poor performer's supervisor for failing to

carry out the desired removal.101 As a result, the President

had no way to hold officers accountable in the executive

branch.

According to Free Enterprise Fund, the Founders

created a unitary executive in part to ensure political

accountability to the people. Because citizens "do not vote

for the 'Officers of the United States,'" they must instead

"look to the President to guide the 'assistants or deputies .

. . subject to his superintendence."102 Without this "clear

and effective chain of command," voters cannot identify

"on whom the blame or the punishment" should fall when

the government errs.103

The Court stressed that its decision did not constrain

the size of the executive branch but instead safeguarded

its accountability. The larger and more complex the

executive branch becomes, the greater the risk that it will

"slip from the Executive's control, and thus from that of

the people."104 As the executive branch expands —

wielding "vast power and touch[ing] almost every aspect

100

Id. at 484.

101

Id.

102

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

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

Hamilton)).

103

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

Hamilton)).

104

Id. at 499.

-App. 46aof daily life" — its accountability to a democratically

elected President is even more essential.105

Where did Free Enterprise Fund leave Myers? It

called Myers a "landmark."106 And it reaffirmed

Myers'"principle that Article II confers on the President

'the general administrative control of those executing the

laws,'" including the removal power.107

And Humphrey's? The Court declined to extend that

decision to "a new type of restriction."108 So Free

Enterprise Fund's reasoning "is in tension with"

Humphrey's,109 including Humphrey's departure from

Myers'"traditional default rule" that "removal is incident

to the power of appointment."110 For any future case about

an agency in the "field of doubt" between Myers and

Humphrey's, the Court directed us to apply Myers, not

Humphrey's.

5. Seila Law

The Court again declined to extend Humphrey's in

Seila Law LLC v. CFPB.111 That case presented another

"new situation": "an independent agency," the Consumer

105

Id.

106

Id. at 492.

107

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

U.S. at 164).

108

Id. at 514.

109

PHH Corp. v. CFPB, 881 F.3d 75, 194, 434 U.S. App. D.C. 98

n.18 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting) (citing In

re Aiken County, 645 F.3d 428, 444-46, 396 U.S. App. D.C. 107 (D.C.

Cir. 2011) (Kavanaugh, J., concurring)); see also Rao, Removal, at

1208.

110

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

111

591 U.S. 197, 140 S. Ct. 2183, 2203, 207 L. Ed. 2d 494 (2020).

-App. 47aFinancial Protection Bureau, "led by a single Director and

vested with significant executive power."112

As in Free Enterprise Fund, the Supreme Court

repudiated a decision of this court.113 And as in Free

Enterprise Fund, the Supreme Court took the President's

absolute removal power as expressed in Myers as "the

rule," with Humphrey's as a limited exception.114 The

Court explained that Humphrey's represents "the

outermost

constitutional

limits

permissible

congressional restrictions on the President's removal

power," and it declined to extend Humphrey's to the novel

agency structure at issue in Seila Law.115

The Court fashioned a clear rule for the Humphrey's

exception: It applies only to "multimember expert

agencies that do not wield substantial executive power."116

Once again, Seila Law confirmed that in cases falling

in the "field of doubt" between Myers and Humphrey's,

Myers controls.

6. Collins

Collins v. Yellen applied Seila Law's holding to

another independent agency led by a single top officer —

the Federal Housing Finance Authority.117 In doing so, the

112

Id. at 2201.

113

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

434 U.S. App. D.C. 98 (D.C. Cir. 2018) (en banc)).

114

Id. at 2201.

115

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

J., dissenting)) (emphasis added).

116

117

Id. at 2200-01.

See 594 U.S. 220, 141 S. Ct. 1761, 1783-87, 210 L. Ed. 2d 432

(2021).

-App. 48aCourt doubled down on its prior reasoning and has been

understood by some — including Justice Kagan — to have

gone even further than Seila Law in affirming the Myers

default rule.118

First, the Court rejected the argument that FHFA's

more limited authority justified its removal protection.119

Instead, the Court reaffirmed the President's removal

power as serving "vital purposes" regardless of an

agency's scope or power.120

Second, the Court rejected the argument that the

FHFA doesn't exercise executive power given its role as a

conservator or receiver, in which it sometimes acts as "a

private party."121 To the contrary, the FHFA derived its

power from a statute and was tasked with interpreting

and implementing that statute — "the very essence of

execution of the law."122 The FHFA's ability to issue

binding orders further confirmed that it "clearly exercises

executive power."123

Third, the Court asked whether an agency that does

not regulate "purely private actors" might avoid the

presidential removal rule.124 Again, the Court answered in

the negative. Once more, it emphasized the "important

purposes" served by the removal power, regardless of

118

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

judgment) (noting the majority jettisoned "significant executive

power" from the test in Seila Law).

119

Id. at 1784-85.

120

Id. at 1784.

121

Id. at 1785-86.

122

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

123

Id. at 1786.

124

Id.

-App. 49awhether an agency regulates private actors directly.125

The implication: If an agency "can deeply impact the lives

of millions of Americans" through its decisions, even

indirectly, it is an agency that the President must be able

to control.126

Finally, the Court addressed whether the "modest"

nature of the FHFA director's tenure protection — less

restrictive than other removal clauses — warranted a

different outcome.127 Again, the Court rejected the

distinction, holding that the Constitution "prohibits even

'modest restrictions'" on the President's removal power.128

Once again, Myers occupied the "field of doubt"

between the (by now exceptionally broad) Myers rule and

the (by now exceptionally narrow) Humphrey's exception.

C. The State of the Doctrine Today

Text, history, and precedent are clear: The

Constitution vests the "entire 'executive Power'" in the

President.129 That power "includes the ability to remove

executive officials."130 Without such power, it would be

"impossible for the President . . . to take care that the laws

be faithfully executed."131

The Supreme Court has "left in place two exceptions to

the President's unrestricted removal power."132 Each of

125

Id.

126

Id.

127

Collins, 141 S. Ct. at 1786.

128

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

129

Seila Law, 140 S. Ct. at 2197.

130

Id.

131

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

132

Id.

-App. 50athem is binding on lower courts, even if each of them is

also on jurisprudential life support. One of them —

Morrison v. Olson — is not relevant here.133

The second exception is Humphrey's. It allows

Congress to restrict the President's removal power for "a

multimember body of experts, balanced along partisan

lines, that perform[s] legislative and judicial functions"

and exercises "no part of the executive power."134 Under

modern Supreme Court precedent, that exception

stretches

further

than

partisan-balanced

"multimember expert agencies that do not wield

substantial executive power."135

For a court to conclude that an executive agency wields

substantial executive power, it need not assemble a factintensive catalog of the agency's executive functions. The

default: Executive agencies exercise executive power. The

exception

covers

only

agency

materially

indistinguishable from the 1935 FTC, as Humphrey's

understood the 1935 FTC.

Why did the Supreme Court narrow Humphrey's so

severely in Seila Law and Collins?

133

487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988); cf. Seila

Law, 140 S. Ct. at 2200 (Morrison covers "inferior officers with limited

duties and no policymaking or administrative authority").

134

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

U.S. at 628).

135

Id. at 2199-2200.

Although the CFPB does not conduct adjudications, it's clear

that Seila's "substantial executive power" test applies to adjudicatory

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

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

agency — the 1935 FTC.

-App. 51aPerhaps it was because Humphrey's "authorize[s] a

significant intrusion on the President's Article II

authority to exercise the executive power and take care

that the laws be faithfully executed."136

Or perhaps it was because Humphrey's "did not pause

to examine how a purpose to create a body 'subject only to

the people of the United States' — that is, apparently,

beyond control of the constitutionally defined branches of

government — could itself be sustained under the

Constitution."137

Or perhaps it was because Humphrey's relied on

inconsistent separation-of-powers logic, which fails to

account for how "an agency can at the same moment reside

in both the legislative and the judicial branches" without

infringing on "the 'fundamental necessity of maintaining

each of the three general departments of government

entirely free from the control or coercive influence . . . of

either of the others.'"138

Or perhaps still it was because Humphrey's made

incomprehensible distinctions "between 'executive

function' and 'executive power.'"139 "Of course the

commission was carrying out laws Congress had enacted;

in that sense its functions could hardly have been

136

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

dissenting).

137

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

Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573,

611-12 (1984).

138

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

139

Id.

-App. 52acharacterized as other than executive, whatever

procedures it employed to accomplish its ends."140

Whatever

the

reason,

without

overturning

Humphrey's, the Supreme Court has seemed "keen to

prune . . . Humphrey's."141 The Court's recent opinions

have "characterized the 'independent agencies' as

executive and have rejected the notion that these agencies

exercise quasi-legislative or quasi-judicial powers."142

140

Id.

141

Aditya Bamzai & Saikrishna Bangalore Prakash, The

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

142

Id.

Recent Supreme Court precedents have "doubted Congress's

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

executive agency." Severino v. Biden, 71 F.4th 1038, 1050, 461 U.S.

App. D.C. 313 (D.C. Cir. 2023) (Walker, J., concurring) (citing Oil

States Energy Services, LLC v. Greene's Energy Group, LLC, 584

U.S. 325, 138 S. Ct. 1365, 1372-73, 200 L. Ed. 2d 671 (2018)). And

"congress cannot delegate legislative power to the president."

Marshall Field & Co. v. Clark, 143 U.S. 649, 692, 12 S. Ct. 495, 36 L.

Ed. 294 (1892); cf. Mistretta v. United States, 488 U.S. 361, 419, 109 S.

Ct. 647, 102 L. Ed. 2d 714 (1989) (Scalia, J., dissenting) ("Strictly

speaking, there is no acceptable delegation of legislative power."). As

a result, while specifically listing an executive agency's executive

functions is a sufficient basis for concluding the President may remove

that agency's principal officers, it is not a necessary basis. See Collins,

141 S. Ct. at 1801 (Kagan, J., concurring in part and concurring in the

judgment) (arguing that Collins "broaden[ed]" Seila Law by

clarifying that "the constitutionality of removal restrictions does not

hinge on the nature and breadth of an agency's authority" (cleaned

up)). If it's not exercising executive power, what is it doing in the

executive branch? Cf. Severino, 71 F.4th at 1050 (Walker, J.,

concurring) ("[I]t might be that little to nothing is left of the

Humphrey's exception to the general rule that the President may

freely remove his subordinates.").

-App. 53aNo wonder that Humphrey's has been mostly ignored

in recent years by Supreme Court majorities — like a

benched quarterback watching Myers (and the original

meaning of the Constitution) from the sideline.

To be clear, this court must "follow the case which

directly controls, leaving to th[e] [Supreme] Court the

prerogative of overruling its own decisions."143 We cannot

overrule Humphrey's. And if the agency in question is the

identical twin of the 1935 FTC (as Humphrey's

understood the 1935 FTC) then Humphrey's controls.

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

loath to cede any more of Article II than Humphrey's

Executor squarely demands."144 Since then, Seila Law and

Collins have turned that wisdom into a binding command

on the lower courts. As in the context of Bivens — like

Humphrey's, a precedent not overruled but severely

narrowed by subsequent decisions — "[e]ven a modest

extension is still an extension."145 And because the

Supreme Court has forbidden extensions of Humphrey's

to any new contexts, we cannot extend Humphrey's — not

even an inch.

III. Stay Factors

To determine whether a stay pending appeal is

appropriate, "we ask (1) whether the applicant is likely to

succeed on the merits, (2) whether it will suffer

143

Mallory v. Norfolk Southern Railway Co., 600 U.S. 122, 143 S.

Ct. 2028, 2038, 216 L. Ed. 2d 815 (2023) (quoting Rodriguez de Quijas

v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct.

1917, 104 L. Ed. 2d 526 (1989)).

144

145

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

Id. (Henderson, J., dissenting) (quoting Ziglar v. Abbasi, 582

U.S. 120, 137 S. Ct. 1843, 1864, 198 L. Ed. 2d 290 (2017)).

-App. 54airreparable injury without a stay, (3) whether the stay will

substantially injure the other parties interested in the

proceedings, and (4) where the public interest lies."146 "The

first two factors . . . are the most critical."147

A. Likelihood of Success on the Merits

Under binding Supreme Court precedent, Congress

cannot restrict the President's power to remove the

principal officers of agencies that "wield substantial

executive power."148 And for the reasons explained below,

the NLRB and the MSPB "exercis[e] substantial

executive authority" — as then-Judge Kavanaugh said in

a dissent later vindicated by Seila Law.149

Because those agencies exercise "substantial executive

power,"150 the Government is likely to prevail in its

contention that the President may fire NLRB

commissioners and MSPB members.

1. Wilcox v. Trump

The NLRB is an executive branch agency that

administers federal labor law.151 It has five members who

are "appointed by the President by and with the advice

146

Ohio v. EPA, 603 U.S. 279, 144 S. Ct. 2040, 2052, 219 L. Ed. 2d

772 (2024) (citing Nken v. Holder, 556 U.S. 418, 434, 129 S. Ct. 1749,

173 L. Ed. 2d 550 (2009)).

147

Nken, 556 U.S. at 434.

148

Seila Law v. CFPB, 591 U.S. 197, 140 S. Ct.2183, 2199-2200, 207

L. Ed. 2d 494 (2020).

149

PHH Corp. v. CFPB, 881 F.3d 75, 173, 434 U.S. App. D.C. 98

(D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting).

150

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

151

29 U.S.C. §§ 153(a), 160(a).

-App. 55aand consent of the Senate."152 They serve five-year terms,

and the President chooses "one member to serve as

Chairman."153 The statute purports to restrict the

President's removal power.154

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

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

other executive agencies, it carries out this law

enforcement mission by promulgating rules, overseeing

adjudications, issuing cease-and-desist orders, ordering

backpay, and seeking enforcement orders and injunctions

in federal court.156

These are "exercises of . . . the 'executive Power.'"157

When Congress validly authorizes agencies to promulgate

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

the law" because it requires the agency to "interpret[] a

law enacted by Congress to implement the legislative

mandate."158 Likewise, when agencies choose whether to

bring enforcement actions in federal court, their

"discretion encompasses the Executive's power to decide

whether to initiate charges for legal wrongdoing and to

seek punishment, penalties, or sanctions against

152

Id. § 153(a).

153

Id.

154

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

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

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

155

Id. § 160(a).

156

Id. §§ 156, 160(b)-(e), (j).

157

City of Arlington v. FCC, 569 U.S. 290, 304 n.4, 133 S. Ct. 1863,

185 L. Ed. 2d 941 (2013) (quoting U.S. Const., art. II, § 1, cl. 1).

158

Collins v. Yellen, 594 U.S. 220, 141 S. Ct. 1761, 1785, 210 L. Ed.

2d 432 (2021) (cleaned up).

-App. 56aindividuals or entities who violate federal law."159 And

when agencies seek monetary relief like backpay "against

private parties on behalf of the United States in federal

court," they exercise a "quintessentially executive power

not considered in Humphrey's Executor."160

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

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

the executive branch and wields substantial executive

power.162

To reinstate Wilcox, the district court relied on an

overbroad reading of Humphrey's and a misplaced

emphasis on twentieth-century history.

First, beginning with Humphrey's, the district court

compared the NLRB to the 1935 FTC, arguing that they

share similar functions and authorities.163 But the two

agencies are far from identical. For one thing, the NLRB

is not subject to a statutorily imposed partisan-balance

159

In re Aiken County, 725 F.3d 255, 266, 406 U.S. App. D.C. 382

(D.C. Cir. 2013).

160

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

161

Id.

162

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

(removable at will) leads investigations and prosecutions "on behalf of

the Board." Wilcox v. Trump, No. 25-cv-334, 2025 WL 720914, at *7

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

Counsel is subservient to the NLRB, which possesses the sole power

to seek enforcement of its orders in federal court, pursue injunctive

relief, and approve certain settlements. 29 U.S.C. § 160(e), (j); NLRB

v. United Food & Commercial Workers Union, Local 23, AFL-CIO,

484 U.S. 112, 121, 108 S. Ct. 413, 98 L. Ed. 2d 429 (1987).

163

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

-App. 57arequirement.164 And the NLRB exercises authorities that

the 1935 FTC did not. For example, it has the power to go

directly to federal court to seek injunctions against

employers or unions while a case is pending.165 And the

NLRB's ability to seek monetary relief like backpay

"against private parties on behalf of the United States in

federal court" is a "quintessentially executive power not

considered in Humphrey's Executor."166

I suppose it is conceivable that the Humphrey's Court

would have upheld removal restrictions for the NLRB had

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

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

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

in Seila Law, Collins, and the Court's other precedents

(guided by the original meaning of the Constitution when

binding precedent does not answer the question).167

Under Seila Law, "the Humphrey's Executor

exception depend[s]" on "the set of powers the

[Humphrey's] Court considered as the basis for its

decision, not any latent powers that the agency may have

had not alluded to by the Court."168 Under Collins, "the

President's removal power serves important purposes

regardless of whether the agency in question affects

ordinary Americans by directly regulating them or by

164

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

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

165

29 U.S.C. § 160(j).

166

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

167

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

168

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

-App. 58ataking actions that have a profound but indirect effect on

their lives."169

The district court did not grapple with these

developments, instead fixating on Humphrey's. Opposing

the Government's stay motion, Wilcox supports that

approach, repeating the uncontroversial statement that

Humphrey's is "good law," as if that requires us to read it

broadly when the Supreme Court's more recent

precedents command us to read it narrowly.170 That

approach does not faithfully apply precedent.

Under a faithful application of Seila Law and Collins,

Humphrey's controls only if an agency is materially

indistinguishable from the 1935 FTC. Humphrey's covers

nothing more than that because the reasoning in Seila

Law and Collins requires a reading of Humphrey's that

covers nothing more than that. In other words,

Humphrey's can cover only an agency that exercises no

"substantial executive power." The district court "chants

[Humphrey's Executor] like a mantra, but no matter how

many times it repeats those words, it cannot give

[Humphrey's Executor] substance" that Seila Law and

Collins say "that it lacks."171

Strikingly, the district court gave short shrift to

Collins, dismissing it in a footnote because it involved a

single-headed agency and the Court "reaffirmed it 'did not

revisit its prior decisions.'"172 Of course neither Seila Law

169

Collins, 141 S. Ct. at 1786.

170

Wilcox Opp. 1, 15, 16.

171

SEC v. Jarkesy, 603 U.S. 109, 144 S. Ct. 2117, 2138, 219 L. Ed.

2d 650 (2024).

172

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

Ct. at 1761) (cleaned up).

-App. 59anor Collins overruled Humphrey's. But we are not free to

ignore the Supreme Court's binding interpretation of its

precedent simply because the Court didn't overrule that

precedent.

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

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

along partisan lines" that (2) does not "wield substantial

executive power."173 Though the FHFA in Collins clearly

failed the first prong, the Court also addressed the second

prong. When Collins did so, it arguably "broaden[ed]"

Seila Law and narrowed Humphrey's even more, by

asking not whether an agency exercises "significant

executive power" but only whether an agency exercises

any "executive power."174

Second, history does not support Wilcox either. The

district court found it persuasive that no President before

President Trump removed an NLRB commissioner.175 But

Supreme Court precedent, not twentieth-century history,

resolves this case. And as the district court said,

Congress's widespread use of independent, multimember

boards and commissions did not begin until the early

1900s.176 So even if we were evaluating the original

meaning of Article II on a blank slate, which we aren't,

that twentieth-century history would be of limited value

for discerning the Constitution's original meaning.177

173

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

174

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

judgment).

175

Wilcox, 2025 WL 720914, at *5.

176

See id. at *6.

177

Similarly unpersuasive is Wilcox's assertion that Congress

-App. 60aFinally, the district court described the President's

removal of Wilcox as a "power grab" and "blatantly

illegal."178 But unconstitutional statutes are void ab initio

because Congress lacks the authority to enact them.179

Such statutes are not law, so it is not "illegal" for the

President to violate them.180 And under the Supreme

Court's precedents, the President's actions within the

executive branch cannot amount to a "power grab"

because "[t]he entire 'executive Power' belongs to the

President alone."181

specifically designed the NLRB to be independent. Wilcox Opp. 5-6.

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

interpreted by the Supreme Court, renders NLRB removal

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

PCAOB to have 'massive power, unchecked power.'" Free Enterprise

Fund v. PCAOB, 537 F.3d 667, 687, 383 U.S. App. D.C. 119 (D.C. Cir.

2008) (Kavanaugh, J., dissenting). That did not win the day at the

Supreme Court.

178

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

179

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60

(1803).

180

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

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

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

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

everything and the statute is unconstitutional, does the President

have the ability? Yes, of course." Question: "And if the provisions are

unconstitutional, they were always unconstitutional, right? They were

void ab initio, right?" Counsel for Wilcox: "Yes, I think that's the right

way to think about the Constitution." Question: "I do think these are

simple questions, but I ask because the district court said that the

President's action was 'blatantly illegal' because the statute prohibits

it. Well, if it's an unconstitutional statute, then a statutory prohibition

against it is not something that would make it 'blatantly illegal.'"

Counsel for Wilcox: "Yes . . . .").

181

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

-App. 61a***

The NLRB exercises "substantial executive power."182

Therefore, the Government is likely to prevail in its

argument that the NLRB's removal protections are

unconstitutional.

2. Harris v. Bessent

The Merit Systems Protection Board is an executive

agency that resolves intra-branch disputes under the Civil

Service Reform Act.183 It has three members "appointed

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

the Senate."184 They serve seven-year terms, and only two

members "may be adherents of the same political party."185

The Act also purports to restrict the President's removal

power.186

Under the Civil Service Reform Act, the MSPB's

powers are four-fold.187

1. It can "hear" and "adjudicate," and ultimately "take

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

removals, suspensions, furloughs, and demotions;

rights

benefits

for

servicemembers;

whistleblower complaints; Hatch Act violations;

and other prohibited personnel practices.188

182

Id. at 2199-2200.

183

5 U.S.C. § 1204(a).

184

Id. § 1201.

185

Id. §§ 1204(d), 1202(a).

186

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

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

187

188

Id. § 1204(a).

Id. § 1204(a)(1); see id. §§ 1214(a)(3), 1221, 1216(a), (c), 2302(b),

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

-App. 62a2. It can "order any Federal agency or employee to

comply with any order or decision issued by the

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

order."189

3. It can "conduct . . . special studies relating to the

civil service and to other merit systems in the

executive branch, and report to the President and

to the Congress as to whether the public interest in

a civil service free of prohibited personnel practices

is being adequately protected."190

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

of Personnel Management" and "declare such

provision[s] . . . invalid" if it would cause an

employee to commit a prohibited personnel

practice.191

These are "exercises of . . . the 'executive Power.'"192

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

"quintessentially executive function."193 And a single

MSPB member can unilaterally stay an agency's

personnel action — or 6,000 such actions, as it turns out194

— for 45 days without participation from the other

189

Id. § 1204(a)(2).

190

Id. § 1204(a)(3).

191

Id. § 1204(a)(4), (f); id. § 2302(b).

192

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

II, § 1, cl. 1).

193

194

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

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

Department of Agriculture, No. CB-1208-25-0020-U-1 (MSPB Mar. 5,

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

-App. 63amembers.195 That stay can then be extended "for any

period which the Board considers appropriate."196

Harris disagrees. She emphasizes the MSPB's

"adjudicatory nature," likening it to an "Article III court."

But the MSPB is not like the Federal Trade Commission

in Humphrey's or the War Claims Commission in Wiener

because it resolves disputes within the executive

branch.197 That distinguishes it from the 1935 FTC and the

War Claims Commission, both of which adjudicated

disputes between the government and the public. MSPB

adjudication is nothing more than intra-branch dispute

resolution. That's an exercise of executive (not quasijudicial) power.

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

as understood by Humphrey's. It reviews the removal and

discipline of federal employees and has the power to

directly override other executive agencies' disciplinary

actions.198 That gives it a significant authority that the

FTC never had. Additionally, the MSPB has the power to

issue binding orders and "enforce compliance with any

such order."199 The 1935 FTC lacked that power. It could

195

5 U.S.C. § 1214(b)(1)(A)(i).

As Judge Henderson notes, there is tension between that

unilateral authority and Harris's declaration, in which she claims she

"cannot issue adjudication decisions unilaterally." J. Henderson Op. 5

n.1 (quoting Harris Decl. ¶ 26, Harris v. Bessent, No. 25-cv-412

(D.D.C. Feb. 23, 2025), ECF No. 22-3).

196

Id. § 1214(b)(1)(B)(i).

197

See Frazier v. MSPB, 672 F.2d 150, 154, 217 U.S. App. D.C. 297

(D.C. Cir. 1982) (the MSPB adjudicates "conflicts between federal

workers and their employing agencies").

198

5 U.S.C. § 7701.

199

Id. § 1204(a)(1)-(2).

-App. 64aissue cease-and-desist orders, but if those were disobeyed,

the agency had to petition to a federal court to enforce its

orders.200

Nor is the MSPB like the War Claims Commission in

Wiener. The MSPB is a permanent body, unlike the

temporary War Claims Commission, which served the

limited purpose of assigning distributions from a

compensation fund.201 More importantly, the MSPB's

powers far outstrip the War Claims Commission's in a

critical way — it can force the President to work with

thousands of employees he doesn't want to work with, an

unquestionable exercise of "substantial executive

power."202

It's also clear that the MSPB does not exercise quasilegislative functions. To the extent its ability to invalidate

certain regulations resembles legislative activity, that

authority does not involve public-facing regulation.203 So

again, even under a broad reading of Humphrey's, the

MSPB's functions do not align with those of the 1935 FTC

or the War Claims Commission. The MSPB "is hardly a

mere legislative or judicial aid."204 It does far more than

merely make "reports and recommendations to Congress,

as the 1935 FTC did."205

200

§ 45).

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

201

Wiener v. United States, 357 U.S. 349, 350, 78 S. Ct. 1275, 2 L.

Ed. 2d 1377, 142 Ct. Cl. 932 (1958).

202

Seila Law, 140 S. Ct. at 2200.

203

See 5 U.S.C. § 1204(f).

204

Seila Law, 140 S. Ct. at 2200.

205

Id.

-App. 65aThe district court recognized that the MSPB

"preserves power within the executive branch by charging

presidentially appointed [MSPB] members with

mediation and initial adjudication of federal employment

disputes."206 But the district court erred in concluding that

the MSPB's "features" made any effect on the President's

exercise of the executive power "limited."207 To the

contrary, as one member of the Supreme Court has

already acknowledged, the preserved power within the

MSPB is "substantial executive authority."208

In Harris's tenure alone, the MSPB resolved

thousands of cases involving "allegations that federal

agencies engaged in prohibited personnel practices, such

as targeting of federal employees based on political

affiliation; retaliation against whistleblowers reporting

violations of law, waste, fraud and abuse; discrimination;

and

[Uniformed

Services

Employment

and

209

Reemployment Rights Act] violations, among others."

Those cases highlight that the MSPB's focus on

internal-dispute resolution does not mean it is an

insignificant or nonexecutive agency. Just because a CEO

may informally adjudicate an internal employee dispute

does not mean the CEO is any less the chief executive

officer. It's part of the job. What's more, Harris has been

a productive member of the MSPB, participating "in

nearly 4,500 decisions" between June 1, 2022, and

206

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

(D.D.C. Mar. 4, 2025) (emphasis omitted).

207

Id.

208

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

209

Harris, 2025 WL 679303, at *14.

-App. 66aFebruary 10, 2025.210 In short, the district court's selfcontradictory assertion that the MSPB "does not wield

substantial executive power, but rather spends nearly all

of its time adjudicating inward-facing personnel matters

involving federal employees," tends to show that the

MSPB does indeed exercise substantial executive

power.211

Finally, the position of the Department of Justice two

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

of MSPB members.212 There, DOJ argued that the

President's unrestricted removal power did not extend to

the Administrative Conference of the United States

because the Conference "does not resolve or commence

matters for the Executive Branch or determine anyone's

rights or obligations."213 The MSPB, in contrast, does

"resolve . . . matters for the Executive Branch"214 —

sometimes several thousands of them in one day.215 So

even according to the understanding of presidential

removal power asserted by DOJ in Severino, the removal

protections for MSPB members are unconstitutional.

***

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

that MSPB members must be removable by the President

210

Id. at *2.

211

Id. at *6 (cleaned up).

212

71 F.4th 1038, 461 U.S. App. D.C. 313 (D.C. Cir. 2023).

213

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

1038, 461 U.S. App. D.C. 313 (D.C. Cir. 2023) (No. 22-5047).

214

215

Id.

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

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

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

-App. 67aat will and consequently that the relevant removal

restrictions are unconstitutional.

B. Irreparable Harm

A stay applicant must show that it will be irreparably

harmed absent a stay.216

Here, the Government contends that the President

suffers irreversible harm each day the district courts'

injunctions remain in effect because he is deprived of the

constitutional authority vested in him alone. I agree.

Article II vests the President with the "entire

'executive Power,'" which "generally includes the ability to

remove executive officials."217 The district courts' orders

effectively nullify that power. That level of interference is

"virtually unheard of," and "it impinges on the 'conclusive

and preclusive' power through which the President

controls the Executive Branch that he is responsible for

supervising."218 If the President "loses confidence in the

intelligence, ability, judgment, or loyalty of any one of [his

subordinates], he must have the power to remove him

without delay."219

To be clear, this is not an abstract constitutional

injury; it is a serious, concrete harm. Each year, the

NLRB oversees tens of thousands of unfair labor practice

216

Nken, 556 U.S. at 434.

217

Seila Law, 140 S. Ct. at 2197.

218

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

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

United States, 603 U.S. 593, 144 S. Ct. 2312, 2327-28, 219 L. Ed. 2d

991 (2024)).

219

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

-App. 68acharges and decides (on average) roughly 200 cases.220

Additionally, the NLRB lacks a quorum without Wilcox,

meaning the district court's order tips the scales in favor

of political appointees that do not share the President's

policy objectives. The President's removal power,

properly understood, avoids that result.221

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

a judicially reinstated Special Counsel, Harris (also

judicially reinstated) stayed the termination of roughly

6,000 probationary employees.222 Now, in opposing the

Government's stay motion, Harris assures us that we need

not worry about such actions because the President (after

action by this court) replaced the Special Counsel. But

even if Harris no longer has the opportunity to stay

personnel actions, she continues to play an ongoing role in

resolving intra-branch, employee-employer clashes,

against the wishes of the "one person" who is "responsible

for all decisions made by and in the Executive Branch."223

The Government has established a likelihood of

irreparable harm.

C. Harm to Removed Officials

220

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

NLRB, perma.cc/T9XE-TF8M.

221

Such disagreement on policy is not mere speculation; the

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

for Wilcox's removal.

222

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

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

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

223

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

dissenting).

-App. 69aAlthough the two "most critical" factors support

issuing stays, I also consider whether those stays "will

substantially injure the other parties interested in the

proceeding."224

They will not. Harris and Wilcox identify harms that

are either incognizable or outweighed by the irreparable

harm suffered by the Government under the district

courts' injunctions.225

First, Wilcox and Harris assert a statutory right to

remain in office. According to Harris, a stay will prevent

her "from fulfilling her duties while removed," which she

says is irreparable because she "took an oath of office to

fulfill specific statutory functions set out by Congress."226

Similarly, Wilcox suggests that her removal "prevents her

from carrying out the duties Congress has assigned to

her."227

The assertion of a "statutory right" is, of course,

entangled with the merits because a statutory right exists

only if the statute is constitutional. I've explained why the

removal provisions here are likely not constitutional. And

I assume that Wilcox and Harris each took an oath to

"support and defend the Constitution."228 So I'm not

224

Nken, 556 U.S. at 434.

225

Vague assertions about presidential removal committing

"violence to the statute Congress enacted" will not suffice — even

setting aside that an unconstitutional statutory provision cannot be

validly enacted. See Harris Opp. 23.

226

Harris Opp. 23.

227

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

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

228

5 U.S.C. § 3331.

-App. 70aconvinced that their removals inflict any irreparable

harm.

Second, both Harris and Wilcox allege that if we issue

a stay, their agencies will be harmed. Specifically, Wilcox

argues that she (and the other NLRB commissioners) will

be "deprived of the ability to carry out their congressional

mandate in protecting labor rights" and "suffer an injury

due to the loss of the office's independence."229 She adds

that her removal "eliminated a quorum, . . . bringing an

immediate and indefinite halt to the NLRB's critical

work."230 For her part, Harris contends "a stay would mar

the very independence that Congress afforded Harris and

the other members of the Board."231

To begin, those are institutional interests, not personal

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

relate to the public interest. Even then, this court recently

doubted its ability to "balance [one agency's] asserted

public interest against the public interest asserted by the

rest of the executive branch."232 Even assuming a court

could weigh those conflicting governmental interests,

Wilcox admits the President "could easily establish a

majority on the Board by appointing members to fill its

two vacant positions," solving the quorum problem.233 And

if that were not the case, "the fact that a given law or

procedure is efficient, convenient, and useful in facilitating

229

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

230

Wilcox Opp. 21.

231

Harris Opp. 23.

232

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

10, 2025).

233

Wilcox Opp. 20.

-App. 71afunctions of government, standing alone, will not save it if

it is contrary to the Constitution."234

D. Public Interest

Staying these cases pending appeal is in the public

interest. The people elected the President, not Harris or

Wilcox, to execute the nation's laws.235

The forcible reinstatement of a presidentially removed

principal officer disenfranchises voters by hampering the

President's ability to govern during the four short years

the people have assigned him the solemn duty of leading

the executive branch.236 One may honestly believe that

labor disputes and personnel matters are more

conveniently or efficiently resolved by an independent

agency, but "[c]onvenience and efficiency are not the

primary objectives—or the hallmarks—of democratic

government."237

IV. Conclusion

The district courts did their level best in rushed

circumstances to follow Supreme Court precedent. But

their fidelity to that precedent was unduly selective. By

reading Humphrey's Executor in an expansive manner,

they read it in a manner that Seila Law and Collins

preclude. Though those cases did not overturn

234

INS v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 77 L. Ed. 2d

317 (1983).

235

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

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

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

10, 1832) ("We are one people in the choice of President and VicePresident.").

236

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

237

Chadha, 462 U.S. at 944.

-App. 72aHumphrey's Executor, their holdings relied on an

exceptionally narrow reading of it.

Even the most casual reader will have guessed by now

that I agree with how Seila Law and Collins read

Humphrey's Executor. But even if I disagreed with them,

this court would lack the authority to undo what they did.

For a lower court like us, that would be a "power grab."238

238

Wilcox, 2025 WL 720914, at *3.

-App. 73aKAREN LECRAFT HENDERSON, Circuit Judge,

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

general principles in Judge Walker's opinion about the

contours of presidential power under Article II of the

Constitution, although I view the government's likelihood

of success on the merits as a slightly closer call. Whatever

the continuing vitality of Humphrey's, I agree that we

should not extend it in this preliminary posture during the

pendency of these highly expedited appeals. I write

separately to highlight areas of the merits inquiry that

remain murky and to emphasize that the government has

easily carried its burden of showing irreparable harm—

the second of the two "most critical" stay factors. Nken v.

Holder, 556 U.S. 418, 434, 129 S. Ct. 1749, 173 L. Ed. 2d

550 (2009).

I do not repeat at length here my views on the

presidential removal power doctrine pre-Seila Law LLC

v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 207 L. Ed. 2d 494

(2020), which I expressed in PHH Corp. v. CFPB, 881 F.3d

75, 138, 434 U.S. App. D.C. 98 (D.C. Cir. 2018) (en banc)

(Henderson, J., dissenting). Instead, I emphasize certain

ways in which Seila Law left unclear where the rule from

Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed.

160 (1926), ends and the exception from Humphrey's

Executor, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935),

begins.

Seila Law described the scope of the Humphrey's

Executor exception as applying to "multimember expert

agencies that do not wield substantial executive power."

591 U.S. at 218. The Court first observed that the CFPB

is not a multimember expert agency because it "is led by a

single Director who cannot be described as a 'body of

-App. 74aexperts' and cannot be considered 'non-partisan' in the

same sense as a group of officials drawn from both sides

of the aisle." Id. The Court then distinguished the CFPB

from the 1935 FTC—which had been characterized as a

"mere legislative or judicial aid"—based on three sets of

powers. Id. Those powers "must be exercises of" the

"executive Power" under our constitutional structure but

they can "take 'legislative' and 'judicial' forms." Id. at 216

n.2 (quoting City of Arlington v. FCC, 569 U.S. 290, 305

n.4, 133 S. Ct. 1863, 185 L. Ed. 2d 941 (2013)).

First, in terms of executive power with a legislative

form the CFPB Director "possesses the authority to

promulgate binding rules fleshing out 19 federal statutes,

including a broad prohibition on unfair and deceptive

practices in a major segment of the U.S. economy." Seila

Law, 591 U.S. at 218. Second, as to executive power with

a judicial form, "the Director may unilaterally issue final

decisions awarding legal and equitable relief in

administrative adjudications." Id. at 219. Third, regarding

purely executive power, "the Director's enforcement

authority includes the power to seek daunting monetary

penalties against private parties on behalf of the United

States in federal court—a quintessentially executive

power not considered in Humphrey's Executor." Id. Based

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

to raise other concerns about the novelty of the CFPB's

structure, the Court held that the CFPB was "[u]nlike the

New Deal-era FTC upheld [in Humphrey's]." Id. at 218.

The next question becomes what kind of agency—

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

"substantial executive power" dividing line. On the one

hand, a plurality of the Seila Law court mused in its

discussion of severability that "[o]ur severability analysis

-App. 75adoes not foreclose Congress from pursuing alternative

responses to the problem—for example, converting the

CFPB into a multimember agency." Id. at 237 (Roberts,

C.J.). But simply converting the CFPB into a multiheaded agency could not have sufficed because the Court

had earlier explained that the CFPB failed the

Humphrey's "substantial executive power" test. See Seila

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

CFPB itself falls outside the Humphrey's exception).

Perhaps the plurality's dictum in another section of the

opinion meant that such a response would be a necessary

but not sufficient condition. Conversely, Seila Law's gloss

on Humphrey's did use the same phrase—"substantial

executive power"—as Justice Kavanaugh's dissent in

PHH when he was a judge on this court. 881 F.3d at 167

(Kavanaugh, J., dissenting). That opinion listed both

the NLRB and the MSPB as "agencies exercising

substantial executive authority." Id. at 173.

In Collins v. Yellen, the Court further explained that

"the nature and breadth of an agency's authority is not

dispositive in determining whether Congress may limit

the President's power to remove its head." 594 U.S. 220,

251-52, 141 S. Ct. 1761, 210 L. Ed. 2d 432 (2021). Instead,

"[c]ourts are not well-suited to weigh the relative

importance of the regulatory and enforcement authority

of disparate agencies, and we do not think that the

constitutionality of removal restrictions hinges on such an

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

concurring in part and concurring in the judgment)

(recognizing Collins'"broadening" of Seila Law); id. at 293

(Sotomayor, J., concurring in part and dissenting in part)

(same). However, Collins did not discuss Humphrey's and

the Court characterized its decision as a "straightforward

application of our reasoning in Seila Law" because the

-App. 76aagency there was also "led by a single Director." Id. at 251

(maj. op.). Thus, it is not clear that Collins' instruction not

to weigh up the nature and breadth of an agency's

authority extends to multimember boards.

Accordingly, reasonable minds can—and often do—

disagree about the ongoing vitality of the Humphrey's

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

646 (5th Cir.) (mem.) (splitting 9-8 on whether to grant

rehearing en banc on the constitutionality of the

Consumer Product Safety Commission's removal

restrictions). But simply applying Seila Law's test and

examining both the NLRB's and the MSPB's executive

powers—regardless of their legislative, judicial and

executive forms—the government has satisfied its burden

of showing a strong likelihood that they are substantial.

Both Wilcox and Harris concede that their agencies wield

substantial power of an "adjudicative" form—indeed, that

is how they hope to fall within the Humphrey's exception.

We must therefore consider those powers that are of a

legislative and executive form.

The NLRB has traditionally preferred to set

precedent by adjudicating, Wilcox v. Trump, 2025 WL

720914, at *9 (D.D.C. Mar. 6, 2025), but it retains broad

authority of a legislative form to promulgate "such rules

and regulations as may be necessary to carry out" its

statutory mandate, 29 U.S.C. § 156. Moreover, its

regulatory authority over labor relations affects a "major

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

Indeed, the district court explained that the NLRB was

established by the Congress "in response to a long and

violent struggle for workers' rights," Wilcox, 2025 WL

720914, at *3, and emphasized its indisputably

"important work," id. at *17. Granted, the NLRB's

-App. 77aexecutive power is partly bifurcated because the General

Counsel investigates charges and prosecutes complaints

before the Board. See 29 U.S.C. § 153(d). However, as

Judge Walker points out, the Board retains the power to

"seek monetary relief like backpay 'against private parties

on behalf of the United States in federal court,' [which is]

a 'quintessentially executive power not considered in

Humphrey's Executor.'" Op. (Walker, J.) at 32 (quoting

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

The MSPB's powers are relatively more

circumscribed. In terms of power of a legislative form, its

rulemaking authority is limited to issuing "such

regulations as may be necessary for the performance of its

functions." 5 U.S.C. § 1204(h). However, it possesses the

negative power, even if rarely used, to review sua sponte

and invalidate regulations issued by the Office of

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

executive form, at least in certain circumstances it

represents itself litigating in federal court. See Harris

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

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

Valeo, 424 U.S. 1, 139-40, 96 S. Ct. 612, 46 L. Ed. 2d 659

(1976), the "responsibility for conducting civil litigation in

the courts of the United States for vindicating public

rights" is one of the "executive functions." The MSPB's

litigation power also distinguishes it from other agencies

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

Chem. & Atomic Workers Int'l Union v. OSHRC, 671 F.2d

643, 651-53, 217 U.S. App. D.C. 137 (D.C. Cir. 1982)

(explaining that the Occupational Safety and Health

Review Commission cannot be a respondent in federal

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

single MSPB member recently wielded considerable

power over the executive by temporarily reinstating

-App. 78athousands of probationary employees. Order on Stay

Request (Mar. 5, 2025) (Harris Opp'n App. C).1

Granted, in Seila Law the Court distinguished the

Office of the Special Counsel from the CFPB in part

because the OSC "does not bind private parties," 591 U.S.

at 221, and the MSPB similarly operates entirely within

the executive branch. But it may be that the Court was

simply highlighting that the CFPB posed more of a threat

to individual liberty than the OSC rather than diminishing

the constitutional problem of dividing power within the

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

(Kavanaugh, J., dissenting) (emphasizing the CFPB's

structure as a threat to individual liberty), with Seila Law,

591 U.S. at 223 (explaining that the Framers sought to

"divide" the legislative power and "fortif[y]" the executive

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

Accordingly, the first Nken factor is a somewhat closer

call in my view than in Judge Walker's but the government

has met its "strong showing" burden at this stage because

of the substantial executive power that the NLRB and

MSPB both wield.

In addition, the government has more than satisfied its

burden to show irreparable harm that far outweighs any

harm to Harris and Wilcox from a stay. As Harris

concedes, the "question of whether the government will

prevail is distinct from whether the government will suffer

Indeed, Harris's declaration recites that she "cannot issue

adjudication decisions unilaterally," Harris Decl. ¶ 26 (Harris Opp'n

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

action to date—"staying" the termination of executive branch

employees by the thousands—is not in fact adjudicative.

-App. 79airreparable harm absent a stay." Harris Opp'n 19. Thus,

we consider whether any harm suffered by the

government can be undone if it prevails.

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

impossible to unwind the days during which a President is

'directed to recognize and work with an agency head whom

he has already removed.'" Dellinger v. Bessent, No. 255052, slip op. at *6 (D.C. Cir. Mar. 10, 2025) (alterations

omitted) (quoting Dellinger v. Bessent, 2025 WL 559669,

at *16 (D.C. Cir. Feb. 15, 2025) (Katsas, J., dissenting)).

Such a requirement encroaches on the President's

"conclusive and preclusive" power to supervise those

wielding executive power on his behalf. Trump v. United

States, 603 U.S. 593, 608-09, 144 S. Ct. 2312, 219 L. Ed. 2d

991 (2024) (citing Seila Law, 591 U.S. at 204; Myers, 272

U.S. at 106).

Harris is also wrong to downplay the government's

injury as a "vague assertion of harm to the separation of

powers." Harris Opp'n 20. In addition to the concrete

actions by the NLRB and the MSPB that Judge Walker

details, Op. (Walker, J.) at 45, the executive branch—not

merely the separation of powers—is harmed through (1) a

"[d]iminution of the Presidency" and (2) a "[l]ack of

accountability," see PHH, 881 F.3d at 155-60 (Henderson,

J., dissenting).

First, as the Supreme Court explained in Free

Enterprise Fund v. PCAOB, 561 U.S. 477, 499, 130 S. Ct.

3138, 177 L. Ed. 2d 706 (2010), our "Constitution was

adopted to enable the people to govern themselves,

through their elected leaders." The growth of the

"headless Fourth Branch" of government, FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 525-26, 129 S. Ct.

1800, 173 L. Ed. 2d 738 (2009) (Scalia, J.), "heightens the

-App. 80aconcern that [the Executive Branch] may slip from the

Executive's control, and thus from that of the people, Free

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

President's duty to "take Care that the Laws be faithfully

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

with principal officers who "by their different views of

policy might make his taking care that the laws be

faithfully executed most difficult or impossible," Myers,

272 U.S. at 131. It makes no difference that the President

can appoint the chair or other members of a board to

reduce the magnitude or duration of this diminution—it is

a diminution nonetheless. See PHH, 881 F.3d at 156-57

(Henderson, J., dissenting) ("Even assuming the CFPB

violates Article II only some of the time—a year here, a

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

favor.").

Second, the Framers decided to check the President's

uniquely concentrated power by making him "the most

democratic and politically accountable official in

Government." Seila Law, 591 U.S. at 224. That

accountability is "enhanced by the solitary nature of the

Executive Branch, which provides 'a single object for the

jealousy and watchfulness of the people.'" Id. (quoting The

Federalist No. 70 (A. Hamilton)). Accordingly, the

President "cannot delegate ultimate responsibility or the

active obligation to supervise that goes with it . . . ." Id.

(quoting Free Enter. Fund, 561 U.S. at 496-97). Without

the power to remove principal officers, "the President

could not be held fully accountable for discharging his own

responsibilities; the buck would stop somewhere else."

Free Enter. Fund, 561 U.S. at 514. That the buck would

stop with members of a board rather than a solitary

agency head obstructing his agenda does not eliminate his

injury.

-App. 81aConversely, both Harris and Wilcox assert harm from

their inability to perform their official functions in

addition to any backpay to which they may be entitled if

they prevail. See Wilcox Opp'n 21 (arguing harm of

deprivation of "statutory right to function") Harris Opp'n

23 (arguing stay will "prevent Harris from fulfilling her

duties"). Indeed, the district courts found injuries to

Harris and Wilcox in being deprived of the "statutory right

to function" as well as distinct injuries to their agencies.

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

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

(D.D.C. Nov. 14, 1983), vacated as moot, 732 F.2d 949, 235

U.S. App. D.C. 347 (D.C. Cir. 1983) (per curiam)); see also

Wilcox, 2025 2025 WL 720914, at *15-16 (citing Berry,

1983 WL 538, at *5). Needless to say, we are not bound by

a vacated district court decision from 40 years ago. At this

stage at least, it is far from clear that Harris or Wilcox

may assert rights against the executive branch on behalf

of their offices or agencies as opposed to themselves

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

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

U.S. 811, 820, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997), for

the proposition that "public officials have no individual

right to the powers of their offices." Harris Gov't Mot. 3;

Wilcox Gov't Mot. 3. The Supreme Court in Raines

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

dispute between the President and the Congress about the

constitutionality of restrictions on the presidential

removal power, it "would have been improperly and

unnecessarily plunged into the bitter political battle being

waged between" them. Raines, 521 U.S. at 827. Instead,

Presidents wait for "a suit brought by a plaintiff with

traditional Article III standing." Id. Here, we are

being asked to enter a political battle between the

-App. 82ainstitutional offices of the NLRB, the MSPB and other

executive-branch officials, including the President.

The district court in Harris sought to distinguish

Raines by observing that it addressed whether legislators

had standing to challenge a vote that did not go their way,

that the injury was diffused across members of the

Congress and that "the legislators did not claim injury

arising from 'something to which they personally are

entitled.'" 2025 WL 679303, at *13 (quoting Raines, 521

U.S. at 821). But the next clause of the quoted language

reads: "such as their seats as Members of Congress after

their constituents had elected them." Raines, 521 U.S. at

821. Here, voters elected the President, not Harris or

Wilcox. As in Raines, Harris's and Wilcox's "injury thus

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

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

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

Federalist No. 62 (J. Madison)). Moreover, in Raines the

legislators "had not been authorized to represent their

respective Houses of Congress in th[e] action, and indeed

both Houses actively oppose[d] their suit." Id. at 829.

Here, there is at least a serious question whether Harris

and Wilcox seek to vindicate personal rights or only those

of the office and agency, and their suits are actively

opposed by their own branch of government.

As we recently explained in Dellinger, "[a]t worst"

Harris and Wilcox "would remain out of office for a short

period of time." Dellinger, slip op. at 7. Because we have

ordered highly expedited merits briefing with the

agreement of the parties, that period is particularly brief.

See Order, Wilcox v. Trump, No. 25-5057 (D.C. Cir. Mar.

18, 2025); Order, Harris v. Bessent, No. 25-5037 & 25-5055

(D.C. Cir. Mar. 18, 2025). "By contrast, the potential injury

-App. 83ato the government of . . . having to try and unravel

[Harris's and Wilcox's] actions is substantial." Dellinger,

slip op. at 7. Thus, even if the first Nken factor is not a

lead-pipe cinch, the injury-focused factors plainly favor a

stay.

In terms of the public interest, and as we explained in

Dellinger, it is not clear how we could balance Harris's and

Wilcox's asserted public interest on behalf of the MSPB

and NLRB continuing to function as the Congress

intended against the public interest asserted by the rest

of the executive branch. See Dellinger, slip op. at 7. And of

course, “[o]nly the President (along with the Vice

President) is elected by the entire Nation.” Seila Law, 591

U.S. at 224. At minimum, this factor does not weigh in

Harris’s and Wilcox’s favor.

***

Accordingly, the government has met its burden for

grants of a stay during the pendency of these appeals.

-App. 84aMILLETT, Circuit Judge, dissenting: The two opinions

voting to grant a stay rewrite controlling Supreme Court

precedent and ignore binding rulings of this court, all in

favor of putting this court in direct conflict with at least

two other circuits. The stay decision also marks the first

time in history that a court of appeals, or the Supreme

Court, has licensed the termination of members of

multimember adjudicatory boards statutorily protected

by the very type of removal restriction the Supreme Court

has twice unanimously upheld.

What is more, the stay order strips the National Labor

Relations Board and the Merit Systems Protection Board

of the quora that the district courts’ injunctions preserved,

disabling agencies that Congress created and funded from

acting for as long as the President wants them out of

commission. That decision will leave languishing hundreds

of unresolved legal claims that the Political Branches

jointly and deliberately channeled to these expert

adjudicatory entities. In addition, the majority decisions’

rationale openly calls into question the constitutionality of

dozens of federal statutes conditioning the removal of

officials on multimember decision-making bodies—

everything from the Federal Reserve Board and the

Nuclear Regulatory Commission to the National

Transportation Safety Board and the Court of Appeals for

Veterans Claims.

That would be an extraordinary decision for a lower

federal court to make under any circumstances. But what

makes it even more striking is that all we are supposed to

decide today is whether a stay pending appeal should

issue. As to that narrow question, the stay decision is an

unprecedented and, in my view, wholly unwarranted use

of this court’s stay power, which is meant only to maintain

-App. 85athe status quo pending an appeal. See Nken v. Holder, 556

U.S. 418, 429, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009) (“A

stay simply suspend[s] judicial alteration of the status

quo,” which is defined as “the state of affairs before the

removal order[s] [were] entered.”) (citation omitted);

Washington Metro. Area Transit Comm’n v. Holiday

Tours, Inc., 559 F.2d 841, 844, 182 U.S. App. D.C. 220

(D.C. Cir. 1977) (A stay pending appeal is ”preventative,

or protective; it seeks to maintain the status quo pending

a final determination of the merits of the suit.”); see also

Huisha-Huisha v. Mayorkas, 27 F.4th 718, 733-734, 456

U.S. App. D.C. 101 (D.C. Cir. 2022) (“[T]he status quo [i]s

‘the last peaceable uncontested status’ existing between

the parties before the dispute developed.”) (quoting 11A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 2948 (3d ed. 1998)).

I cannot join a decision that uses a hurried and

preliminary first-look ruling by this court to announce a

revolution in the law that the Supreme Court has

expressly avoided, and to trap in legal limbo millions of

employees and employers whom the law says must go to

these boards for the resolution of their employment

disputes. I would deny a stay.

These cases arise out of the summary termination,

without notice, of two members of multimember

adjudicatory bodies that Congress created to resolve

disputes impartially and free of political influence for

reasons of grave national importance.

Cathy Harris is a member of the Merit Systems

Protection Board (“MSPB”). The MSPB is an

-App. 86aadjudicatory body that primarily reviews federal

employees’ appeals alleging that their government

employer discriminated against them based on their race,

color, gender, political affiliation, religion, national origin,

age, disability, or marital status; retaliated against them

for whistleblowing; failed to comply with protections for

veterans; or otherwise subjected them to an adverse

employment action, such as termination, suspension, or a

reduction in pay grade, 5 U.S.C. §§ 1204(a)(1); 1221;

2302(b)(1), (8)-(9); 3330a(d); 7512.

The MSPB has three members who are appointed by

the President with the advice and consent of the Senate to

serve seven-year terms. 5 U.S.C. §§ 1201, 1202(a)-(c). No

more than two members of the MSPB may belong to the

same political party. Id. § 1201. The President can also

appoint one of the members, with the advice and consent

of the Senate, as the Chair of the MSPB. Id. § 1203(a).

MSPB members may be removed only for “inefficiency,

neglect of duty, or malfeasance in office.” Id. § 1202(d).

Gwynne Wilcox is a member, and former Chair, of the

National Labor Relations Board (“NRLB”), which

Congress charged with “prevent[ing] any person from

engaging in any unfair labor practice[.]” 29 U.S.C. §

160(a). The NLRB has two distinct parts. The fivemember Board, on which Wilcox sits, adjudicates appeals

of labor disputes from administrative law judges. Id. §

153(a). Separately, the NLRB General Counsel

prosecutes unfair labor-practice charges. Id. § 153(d); see

also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 139, 95

S. Ct. 1504, 44 L. Ed. 2d 29 (1975). These two divisions of

the Board operate independently. NLRB. V. United Food

& Com. Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112,

118, 108 S. Ct. 413, 98 L. Ed. 2d 429 (1987).

-App. 87aWhen reviewing administrative law judge decisions,

the NLRB reviews the entire record, receives briefing,

and issues its own decision on both the facts and the law.

29 U.S.C. § 160I; 29 C.F.R. § 101.12. The Board may issue

a cease-and-desist order to halt unfair labor practices, or

it may issue an order requiring reinstatement of

terminated employees, with or without backpay, and

similar equitable remedies. 29 U.S.C. § 160(c). These

orders, however, are not self-executing. They are

enforceable only by a federal court. Id. § 160(e).

The President appoints NLRB members with the

advice and consent of the Senate, and the members serve

staggered five-year terms. 29 U.S.C. § 153(a). The

President also designates one of the members to serve as

Chair. Id. Congress limited the President's power to

remove a Board member to "neglect of duty or

malfeasance in office," and required advance notice and a

hearing. Id. In contrast, the President may remove the

General Counsel at will. See id. § 153(d).

Cathy Harris began her seven-year term as a member

of the MSPB in June 2022. On February 10, 2025, Harris

received an email from the White House Office of

Presidential Personnel stating: "On behalf of President

Donald J. Trump, I am writing to inform you that your

position on the Merit Systems Protection Board is

terminated, effective immediately." Declaration of Cathy

Harris ("Harris Decl.") ¶ 4. The email did not allege any

inefficiency, neglect of duty, or malfeasance on Harris's

part.

-App. 88aHarris filed suit on February 11th, challenging her

removal as ultra vires, unconstitutional, and a violation of

the Administrative Procedure Act. She sought relief

under the Declaratory Judgment Act, issuance of a writ of

mandamus, and equitable relief. The district court

awarded summary judgment to Harris and granted a

permanent injunction and declaratory relief maintaining

her in office. Harris v. Bessent, __ F. Supp. 3d __, No. 25cv-412 (RC), 2025 2025 WL 679303, at *3 (D.D.C. March 4,

2025). The court added that, if equitable relief were

"unavailable[,]" it would issue a writ of mandamus "as an

alternative remedy at law." Id. at *15.

Gwynne Wilcox was confirmed in September 2023 for

her second term as a member of the NLRB. President

Biden designated her Chair of the Board in December

2024. On January 27, 2025, Wilcox received an email from

the White House Office of Presidential Personnel stating

that she was "hereby removed from the office of Member[]

of the National Labor Relations Board." Declaration of

Gwynne Wilcox Ex. A, at 1. Wilcox did not receive the

statutorily required advance notice of her termination,

and the email did not offer Wilcox a hearing or claim any

neglect of duty or malfeasance on her part. Id.; see also

Motions Hearing Tr. 51:6-14 (March 5, 2025) (government

acknowledging that Wilcox was not "removed for any

neglect or malfeasance").

Wilcox sued President Trump and the new Board

Chairman, Marvin Kaplan, on February 5th, alleging that

her removal violated the National Labor Relations Act.

Her complaint sought an injunction directing Kaplan to

reinstate her as a member of the Board. Because the suit

involved only questions of law, Wilcox promptly moved for

-App. 89aexpedited summary judgment. The district court granted

summary judgment for Wilcox, holding that her removal

was unlawful and issued a permanent injunction

maintaining her in office. Wilcox v. Trump, __ F. Supp. 3d

__, No. 25-cv-334 (BAH), 2025 WL 720914, at *5, 18

(D.D.C. Mar. 6, 2025).

The government appealed the judgments in both

Harris's and Wilcox's cases and seeks a stay of the district

courts' judgments.

A stay pending appeal is an "extraordinary" remedy.

Citizens for Resp. & Ethics in Washington v. Federal

Election Comm'n, 904 F.3d 1014, 1017, 438 U.S. App. D.C.

354 (D.C. Cir. 2018) (per curiam). To obtain such

exceptional relief, the stay applicant must (1) make a

"strong showing that [it] is likely to succeed on the merits"

of the appeal; (2) demonstrate that it will be "irreparably

injured" before the appeal concludes; (3) show that issuing

a stay will not "substantially injure the other parties

interested in the proceeding"; and (4) establish that "the

public interest" favors a stay. Nken, 556 U.S. at 434

(quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct.

2113, 95 L. Ed. 2d 724 (1987)).

The government has satisfied none of those stay

factors. First, the government has failed to make any

showing, let alone a "strong showing[,] that [it] is likely to

succeed on the merits" in its appeal to this court. Nken,

556 U.S. at 434; see also id. (the likelihood of success on

the merits and irreparable injury are the "most critical"

factors). Controlling Supreme Court precedents—

Humphrey's Executor v. United States, 295 U.S. 602, 55

-App. 90aS. Ct. 869, 79 L. Ed. 1611 (1935), and Wiener v. United

States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377, 142

Ct. Cl. 932 (1958)—establish that the MSPB and NLRB's

for-cause removal protections are constitutional. Circuit

precedent binds this panel to that same conclusion. In

addition, the government's efforts to de-constitutionalize

those statutory protections are unlikely to succeed given

the long tradition of removal limitations and their

particular justifications.

Second, the government has not identified any

irreparable harm that would arise from a stay while these

appeals are expeditiously decided. Its argument that the

President's removal power is irreparably impaired

depends entirely on this court overturning Supreme Court

rulings holding that these removal protections do not

unconstitutionally encroach on the President's power.

Third, the balance of harms to the plaintiffs and the

public interest weighs strongly against a stay.

III

The Supreme Court's decisions in Humphrey's

Executor and Wiener squarely foreclose the government's

arguments on appeal. In those cases, the Supreme Court

unanimously held that for-cause removal protections like

those applicable to MSPB and NLRB members were

constitutional as applied to officials on multimember

independent agencies that exercise quasi-adjudicatory

and quasi-legislative functions within the Executive

Branch—just like those undertaken by the MSPB and

NLRB. Humphrey's Executor, 295 U.S. at 624; Wiener,

357 U.S. at 355-356.

-App. 91aIn Humphrey's Executor, the Supreme Court upheld

for-cause removal protections for members of the Federal

Trade Commission ("FTC"). 295 U.S. at 620. The Court

reasoned that, as a five-member board with no more than

three commissioners from the same political party, the

FTC was designed to be "nonpartisan" and "act with entire

impartiality." Id. at 619-620, 624. In addition, the FTC was

"charged with the enforcement of no policy except the

policy of the law." Id. at 624.

In that way, the FTC's functions were held to be

"predominantly quasi-judicial and quasi-legislative."

Humphrey's Executor, 295 U.S. at 624. The Commission's

functions were quasi-judicial because it could hold

"hearing[s]" on claims alleging "unfair methods of

competition," prepare "report[s] in writing stating its

findings as to the facts," and "issue * * * cease and desist

order[s,]" which only federal courts (and not the FTC

itself) could enforce. Id. at 620-622, 628. The FTC was

quasi-legislative, in that the Commission "fill[ed] in and

administer[ed] the details" of the Federal Trade

Commission Act and made "investigations and reports * *

* for the information of Congress[.]" Id. at 628.

The Supreme Court reaffirmed Humphrey's Executor

two decades later. In Wiener, the Court upheld for-cause

removal protections for members of the War Claims

Commission—a three-member body that adjudicated

Americans' injury and property claims against Nazi

Germany and its allies. 357 U.S. at 350. The Court

concluded that the Commission could not accomplish its

adjudicatory function—fairly applying "evidence and

governing legal considerations" to the "merits" of claims—

without some protection against removal. Id. at 355-356.

The Constitution, the Court held, permitted sheathing

-App. 92a"the Damocles' sword of removal" by instituting for-cause

protections for Commission members. Id. at 356.

The Wiener Court also clarified what qualifies as a

"quasi-judicial" function. It explained that, even though

the Commission was part of the Executive Branch, its role

was purely adjudicatory because Congress "chose to

establish a Commission to 'adjudicate according to law' the

classes of claims defined in the statute[.]" Wiener, 357 U.S.

at 355. That demonstrated the "intrinsic judicial character

of the task with which the Commission was charged." Id.

Humphrey's Executor and Wiener are precedential

decisions that bind this court. Even as the Supreme Court

has rejected more modern and novel constraints on the

removal of single heads of agencies exercising substantial

executive power, its modern precedent has consistently

announced that Humphrey's Executor remains "in

place[.]" Seila Law v. CFPB, 591 U.S. 197, 215, 140 S. Ct.

2183, 207 L. Ed. 2d 494 (2020); see id. at 228 ("not

revisit[ing] Humphrey's Executor"); Collins v. Yellen, 594

U.S. 220, 250-251, 141 S. Ct. 1761, 210 L. Ed. 2d 432 (2021)

(recognizing that Seila Law did "not revisit [] prior

decisions") (quoting Seila Law, 591 U.S. at 204); see also

Morrison v. Olson, 487 U.S. 654, 687, 108 S. Ct. 2597, 101

L. Ed. 2d 569 (1988) (in case involving restrictions on

removal of an inferior officer, recognizing that

Humphrey's Executor remains good law); see generally

Free Enter. Fund v. Public Acct. Oversight Bd., 561 U.S.

477, 483, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010) (in case

involving multimember board, declining to "reexamine"

Humphrey's Executor); id. at 501 ("[W]e do not" "take

issue with for-cause limitations in general[.]").

-App. 93aFree Enterprise Fund, for example, held

unconstitutional double-layered for-cause removal

protections. That is, Members of the Public Company

Accounting Oversight Board could be removed only for

cause by the Securities Exchange Commission, whose

members, in turn, the Court accepted could be removed

by the President only for cause. Free Enter. Fund, 561

U.S. at 484-487. The Supreme Court held that a twicerestricted removal power imposed too great a constraint

on the President's authority. Id. at 492.

In devising a remedy, the Supreme Court left the

Securities and Exchange Commission's accepted singlelayer removal protections intact; only the Board's

protections were stricken. Free Enter. Fund, 561 U.S. at

492, 495, 509. The Court found this would be a sufficient

constitutional remedy because, even with the

Commissioners enjoying for-cause protection, the

President could "then hold the Commission to account for

its supervision of the Board, to the same extent that he

may hold the Commission to account for everything else it

does." Id. at 495-496. In so ruling, the Court repeated the

rule from Humphrey's Executor that "Congress can,

under certain circumstances, create independent agencies

run by principal officers appointed by the President,

whom the President may not remove at will but only for

good cause." Id. at 483.

Seila Law likewise repeated that Humphrey's

Executor remains governing precedent. In that case, the

Supreme Court invalidated the removal protections for

the Consumer Financial Protection Bureau ("CFPB")'s

single director because she had "sole responsibility to

administer 19 separate consumer-protections statutes"

and could "unilaterally, without meaningful supervision,

-App. 94aissue final regulations, oversee adjudications, set

enforcement priorities, initiate prosecutions, and

determine what penalties to impose on private parties."

Seila Law, 591 U.S. at 219, 225. Structural features of the

CFPB further insulated the director from presidential

control. Because the agency was headed by one director

with a five-year term, "some Presidents may not have any

opportunity to shape its leadership and thereby influence

its activities." Id. at 225. The CFPB also receives its

funding from the Federal Reserve Board, which is funded

outside of the annual appropriations process, further

diluting presidential oversight. Id. at 226.

Importantly, the Supreme Court's decision was

explicit that Humphrey's Executor remains "in place."

Seila Law, 591 U.S. at 215; id. at 228 ("[W]e do not revisit

Humphrey's Executor or any other precedent today[.]").

In fact, in Seila Law, three Justices invited Congress to

"remedy[] the [CFPB's] defect" by "converting the CFPB

into a multimember agency," id. at 237 (Roberts, C.J.,

joined by Alito and Kavanaugh, JJ., concurring in the

judgment), and four more Justices agreed that such a

redesign would be constitutional, id. at 298 (Kagan, J.,

joined by Ginsburg, Breyer, and Sotomayor, JJ.,

concurring in the judgment with respect to severability

and dissenting in part).

Most recently, the Supreme Court's decision in

Collins, which struck down another single-headed agency

performing predominantly executive functions, also

acknowledged that Humphrey's Executor remained

precedential. Collins, 594 U.S. at 250-251.

Under the precedent set in Humphrey's Executor and

Wiener, and preserved in Free Enterprise Fund, Seila

-App. 95aLaw, and Collins, the MSPB and NLRB removal

protections are constitutional.

The MSPB is a "multimember expert agenc[y] that

do[es] not wield substantial executive power[.]" Seila Law,

591 U.S. at 218. No more than two of its three members

may hail from the same political party. 5 U.S.C. § 1201; see

also Humphrey's Executor, 295 U.S. at 624 ("The

commission is to be nonpartisan[.]"). MSPB members

serve staggered seven-year terms, giving each President

the "opportunity to shape [the Board's] leadership and

thereby influence its activities." Seila Law, 591 U.S. at

225. President Trump, in fact, will be able to appoint at

least two of the MSPB's three members.

In the government's own words, the MSPB is

"predominantly an adjudicatory body." Oral Arg. Tr.

12:19-23. The MSPB has no investigatory or prosecutorial

role. Instead, it hears disputes between federal employees

and federal agencies. 5 U.S.C. §§ 1204(a)(1), 7701(a). As

such, the MSPB is passive and must wait for appeals to be

initiated either by employees who have suffered an

adverse employment action, discrimination, or

whistleblower retaliation, or by employing agencies or the

Office of Special Counsel. Id. §§ 1204(a)(1), 1214(b)(1)(A);

5 C.F.R. § 1201.3; see Seila Law, 591 U.S. at 219-220

(reiterating the constitutionality of removal protections

for an officer who wielded "core executive power" because

"that power, while significant, was trained inward to highranking Governmental actors identified by others, and

was confined to a specified matter in which the

-App. 96aDepartment of Justice had a potential conflict of

interest").1

Like the War Claims Commission in Wiener, the

MSPB must "'adjudicate according to law' the classes of

claims defined in the statute[.]" 357 U.S. at 355. That

confirms the "intrinsic judicial character of the task with

which" the MSPB is "charged." Id.

The history of the MSPB as a bifurcated entity

reinforces its almost exclusively adjudicatory role. In

1978, Congress divided the Civil Service Commission into

the Office of Personnel Management and the MSPB. Civil

Service Reform Act of 1978, Pub. L. No. 95-454, § 201, 92

Stat. 1111, 1119. The Office of Personnel Management was

tasked with "executing, administering, and enforcing * * *

civil service rules and regulations[,]" while the MSPB—

then, as now—was tasked with adjudicating disputes. Id.

§ 202, 92 Stat. at 1122.

Once the MSPB issues decisions, federal agencies and

employees are expected to "comply" with its orders, 5

U.S.C. § 1204(a)(2), but the MSPB has no independent

means of enforcing its orders. Cf. Humphrey's Executor,

295 U.S. at 620-621 (FTC cease-and-desist orders could

only be enforced by application "to the appropriate Circuit

Court of Appeals[.]").

In the exercise of its adjudicatory authority, the MSPB has

limited jurisdiction. Only civil servants that fall within the statutorily

defined term "employee" can seek its review. 5 U.S.C. §§ 7511(a)(1),

7701(a); see also Roy v. MSPB, 672 F.3d 1378, 1380 (Fed. Cir. 2012).

That definition excludes, among other categories, political appointees

and civil servants in "probationary" or "trial period[s]" of employment.

5 U.S.C. § 7511(a)(1); see also Roche v. MSPB, 596 F.3d 1375, 1383

(Fed. Cir. 2010).

-App. 97aIn addition, most MSPB decisions are subject to

Article III review. Employees can appeal to federal court

any decision that "adversely affect[s] or aggrieve[s]" them,

and the Director of the Office of Personnel Management

can petition for judicial review of any MSPB decision that

the Director believes is erroneous and "will have a

substantial impact on a civil service law, rule, regulation,

or policy directive." 5 U.S.C. § 7703(a)(1), (d)(1).

The MSPB has limited rulemaking authority to

prescribe only those regulations "necessary for the

performance of its functions," many of which are akin to

the federal rules of procedure and local rules that courts

adopt. 5 U.S.C. § 1204(h); see, e.g., 5 C.F.R. §§ 1201.14

(electronic filing procedures), 1201.23 (computation of

time for deadlines), 1201.26 (service of pleadings). It also

must prepare "special studies" and "reports" on the civil

service for the President and Congress, 5 U.S.C. §

1204(a)(3), but these are just "recommendations[,]" carry

no force of law, and are not enforced by the MSPB, Harris

Decl. ¶ 30; see Humphrey's Executor, 295 U.S. at 621

(citing 15 U.S.C. § 46). In addition, the MSPB remains

accountable to the President and Congress through the

appropriations process. See, e.g., Pub. L. No. 118-47, 138

Stat. 557 (2024). That affords the President an

"opportunity to recommend or veto spending bills" to fund

its operations. Seila Law, 591 U.S. at 226.

The NLRB also fits the Humphrey's Executor and

Wiener mold. Indeed, Congress enacted the National

Labor Relations Act, which created the NLRB, just over

a month after Humphrey's Executor was decided and

modeled the statute on the FTC's organic statute.

Compare National Labor Relations Act, Pub. L. No. 74-

-App. 98a198, 49 Stat. 449 (1935), with An Act to create a Federal

Trade Commission, Pub. L. No. 63-203, 38 Stat. 717 (1914);

see also J. Warren Madden, Origin and Early Years of the

National Labor Relations Act, 18 HASTINGS L.J. 571,

572-573 (1967).

As designed, the NLRB is a "multimember" agency

that does "not wield substantial executive power[.]" Seila

Law, 591 U.S. at 218. It is composed of five members that

serve staggered five-year terms, thus affording each

President the chance to affect its composition. 29 U.S.C. §

153(a); see also Seila Law, 591 U.S. at 225. Though the Act

does not require the Board's members to be balanced

across party lines, Presidents since Eisenhower have

adhered to a "tradition" of appointing no more than three

members from their own party. Brian D. Feinstein &

Daniel J. Hemel, Partisan Balance with Bite, 118 Colum.

L. Rev. 9, 54-55 (2018). No one disputes that continues to

be the case with the current Board of which Wilcox is a

member.

The NLRB is predominantly an adjudicatory body. It

hears complaints alleging unfair labor practices by

employers and labor unions. Glacier Northwest v.

International Bhd. of Teamsters Loc. Union No. 174, 598

U.S. 771, 775-776, 143 S. Ct. 1404, 216 L. Ed. 2d 28 (2023).

It can issue cease-and-desist orders aimed at unfair labor

practices and orders requiring reinstatement or backpay.

29 U.S.C. § 160(c). These orders, however, are not

independently enforceable. They must be given legal force

by a federal court of appeals. Id. at §§ 154(a), 160(e); see

also Dish Network Corp. v NLRB, 953 F.3d 370, 375 n.2

(5th Cir. 2020) (The NLRB "needs a court's imprimatur to

render its orders enforceable."). In addition, any person

-App. 99a"aggrieved" by an NLRB decision may obtain judicial

review in federal court. 29 U.S.C. § 160(f).

Conspicuously absent from the NLRB's authority is

any power to investigate or prosecute cases. That

authority is left to the (removable-at-will) General

Counsel. See 29 U.S.C. § 153(d). So the NLRB's powers

are less than those of the FTC in Humphrey's Executor

because the FTC could launch investigations "at its own

instance[.]" Brief for Samuel F. Rathbun, Executor, at 46

n.21, Humphrey's Executor, 295 U.S. 602 (1935) (No. 667);

see Seila Law, 591 U.S. at 219 n.4 ("[W]hat matters" for

assessing Humphrey's Executor "is the set of powers the

Court considered as the basis for its decision[.]").

Like the MSPB, the NLRB is funded through

congressional appropriations. See, e.g., Pub. L. No. 118-47,

138 Stat. 698 (2024). Also like the MSPB, the NLRB has

circumscribed rulemaking authority. It can issue rules

and regulations that are necessary to carry out its

statutory duties. 29 U.S.C. § 156. As part of this authority,

the NLRB may promulgate interpretive rules "advis[ing]

the public of [its] construction" of the National Labor

Relations Act, Shalala v. Guernsey Mem'l Hosp., 514 U.S.

87, 99, 115 S. Ct. 1232, 131 L. Ed. 2d 106 (1994) (citation

omitted), but Article III courts review those

interpretations de novo, Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 394, 144 S. Ct. 2244, 219 L. Ed.

2d 832 (2024).

All of that makes the answer to the question whether

the government is likely to succeed in its appeal an easy

"No." The unanimous holdings in Humphrey's Executor

and Wiener that removal restrictions on multimember,

non-partisan bodies engaged predominantly in

-App. 100aadjudicatory functions are constitutional bind this court,

especially in light of the Supreme Court's repeated

preservation of that precedent and Seila Law's express

invitation for Congress to change the CFPB into a

multimember body.

The government and my colleagues' opinions press two

central arguments to escape this binding authority, but

neither affords the government a likelihood of success on

appeal.

To start, the government and the opinions of Judges

Henderson and Walker try to distinguish the MSPB and

NLRB from the multimember agencies at issue in

Humphrey's Executor and Wiener. But those efforts do

not work.

The government casts the MSPB as exercising

executive authority because the MSPB "hear[s]" and

"adjudicate[s]" matters, is authorized to take "final action"

on those matters, "issue[s]" remedies, and orders

"compliance" with its decisions. Gov't Stay Mot. in Harris

12 (quoting 5 U.S.C. § 1204(a)(1)-(2)).

True—the MSPB does do those things. But those are

the hallmarks of an adjudicative body. The War Claims

Commission was an "adjudicatory body[,]" and it issued

final and unreviewable decisions that ordered funds to be

paid from the Treasury Department's War Claims Fund.

Wiener, 357 U.S. at 354-356. The decisions of the MSPB

and NLRB, more modestly, can only be enforced by a

federal court. See 5 U.S.C. §§ 1204(a)(2), 7703 (MSPB); 29

U.S.C. § 160(e) (NLRB).

The government points out that the MSPB can

invalidate rules issued by the Office of Personnel

-App. 101aManagement. Gov't Stay Mot. in Harris 12 (citing 5 U.S.C.

§ 1204(f)). But the MSPB can invalidate only those rules

that are themselves inherently unlawful because they

would require employees to violate the law by engaging in

discriminatory, retaliatory, or other impermissible

conduct. 5 U.S.C. §§ 1204(f)(2), 2302(b). Needless to say,

that type of invalidation is an "exceedingly rare

occurrence," Harris Decl. ¶ 31, and could not trench upon

any lawful exercise of the President's duty to "faithfully

execute" the laws of the United States, U.S. CONST. Art.

II, § 3. And the government nowhere disclaims its ability

to obtain judicial review of such a decision. See generally

5 U.S.C. § 7703(d)(1).

The government also highlights that MSPB attorneys,

as opposed to lawyers from the Department of Justice,

may represent the Board in civil actions in the lower

federal courts. Gov't Mot. in Harris 12 (citing 5 U.S.C. §

1204(i)). But that is also true of the Federal Reserve

Board, 12 U.S.C. § 248(p), and the Securities Exchange

Commission, whose removal protections the Supreme

Court took as given as part of the constitutional remedy

adopted in Free Enterprise, 15 U.S.C. §§ 77t(b)-(c), 78u(c)(e). Anyhow, independent litigating authority is not

uniquely executive in character. The Political Branches

have statutorily authorized the Senate Legal Counsel and

the General Counsel of the House to represent the Senate

and House, respectively, in court proceedings. 2 U.S.C. §§

288c, 5571(a).

Finally, Judge Walker claims that the MSPB wields

executive power because "it can force the President to

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

with[.]" J. Walker Op. 40-41. The assertion that the

President could fire every single employee in the

-App. 102aExecutive Branch, as opposed to principal officers, is a

breathtaking broadside on the very existence of a civil

service that not even the government advances. And

Judge Walker cites no authority for that proposition,

which is odd given that the only issue before us is the

likelihood of the government's success on appeal on the

arguments it advances.

Anyhow, his point proves the opposite. Issuing an

order that an employee was unlawfully discharged is

intrinsically adjudicative. Federal courts often conclude

that employment discharges by the federal government

were contrary to law and order employees reinstated. See,

e.g., Vitarelli v. Seaton, 359 U.S. 535, 546, 79 S. Ct. 968, 3

L. Ed. 2d 1012 (1959) (reversing lower courts and ordering

reinstatement of Department of Interior employee who

was fired without procedurally proper notice or hearing);

Lander v. Lujan, 888 F.2d 153, 158, 281 U.S. App. D.C.

140 (D.C. Cir. 1989) (affirming district court order

reinstating Bureau of Mines employee to position he was

demoted from in violation of Title VII); American Postal

Workers Union, AFL-CIO v. United States Postal Serv.,

830 F.2d 294, 312, 265 U.S. App. D.C. 146 (D.C. Cir. 1987)

(finding Postal Worker discharged in violation of the First

Amendment was entitled to reinstatement and back pay).

Judge Walker's opinion also overlooks that the MSPB

has no legal authority to "force" its decisions on anybody

as it has no enforcement arm or sanctions to impose for

noncompliance. Only a federal court can do that. And even

then, the decisions only "force" the President to work with

individuals whom the President cannot legally fire under

the anti-discrimination, whistleblower-protection, and

veterans-preference laws that he has sworn to uphold. So

just like the FTC, the MSPB's charge is "the enforcement

-App. 103aof no policy except the policy of the law." Humphrey's

Executor, 295 U.S. at 624.

As for the NLRB, the government insists that the

Board is not "hermetically sealed" off from the General

Counsel's enforcement functions. Gov't Stay Mot. in

Wilcox 16. In particular, the government argues that the

Board, not the General Counsel, may seek injunctions

against unfair labor practices in federal court. Id. (citing

29 U.S.C. § 160(j)). My colleagues' opinions likewise note

that the NLRB can seek backpay against private parties

in federal court. J. Walker Op. 33-34; J. Hender

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