Appeals panel appears skeptical of Trump administration’s independent agency firings

A federal appeals court panel raised skepticism Tuesday that President Trump’s firings of two independent agency leaders complied with Supreme Court precedent.

Trump’s terminations of two Democratic appointees — Gwynne Wilcox to lead the National Labor Relations Board (NLRB), and Cathy Harris to lead the Merit Systems Protection Board (MSPB) — have set off a consequential court battle over presidential power.

Despite the administration’s contention that the president can unilaterally fire them because their statutory removal protections are unconstitutional, the District of Columbia Circuit Court of Appeals panel insisted Tuesday that the Supreme Court’s decades-old precedent permitting such protections remains good law.

“I understand you're doing your best,” U.S. Circuit Judge Patricia Millett, an appointee of former President Obama, told the government’s lawyer at one point.

“But I'm sitting here with Supreme Court precedent, one on each shoulder — multiple on each shoulder, honestly — saying ‘still law,’ ‘still law,’ ‘still law,’ ‘still law,’” Millett said.

Trump’s firings of independent agency leaders are just one dimension of his expansionist view of presidential power that has prompted him to rapidly reshape aspects of the federal bureaucracy.

Justice Department lawyer Eric McArthur noted the president’s “unrestricted” removal power is the “general” or “presumptive” rule, and the Supreme Court’s precedents merely carve out an exception for some independent agency leaders. McArthur emphasized that the court’s conservative majority has narrowed that exception in two recent cases.

“That rule flows from the text of Article II, which vests the entirety of the executive power in the president, and from the need to ensure that executive officials who wield power affecting the lives and livelihoods of American citizens remain accountable to the democratically elected president,” he said.

But McArthur faced sharp questioning from the three-judge panel, which noted the Supreme Court has declined to explicitly overrule the key precedent in those recent cases.

“That’s what I’m struggling with. You want us to follow Supreme Court precedent but then not take them at their word and instead psychoanalyze whether somehow they were subconsciously overruling what they said they were keeping in place,” Millett said.

Nathaniel Zelinsky, a lawyer who argued on Harris’s behalf, urged the appeals panel to stick within the parameters set by the justices.

“The prerogative of the overruling the Supreme Court's precedent lies with the Supreme Court,” Zelinsky said. “It is not for the Court of Appeals.”

"I think we all recognize that we are a lower court, and that we take our orders from the Supreme Court,” replied U.S. Circuit Judge Justin Walker, a Trump appointee.

Many legal experts believe the battle is ultimately destined for the high court, which would have authority to overrule its own precedent.

The case carries impacts beyond the NLRB and MSPB agencies and could shift whether independent agencies across the federal government are subject to the political whims of the White House.

In response to a question from U.S. Circuit Judge Karen Henderson, an appointee of the former President George H. W. Bush, McArthur agreed the president could decline to appoint female heads or heads over 40 years old to the offices if he chose to do so, though questions would remain about whether other provisions of the Constitution were being violated.

Deepak Gupta, a lawyer for Wilcox, called the government’s contention that Trump faces harm each day he can’t exercise his removal powers “very, very abstract and the thinnest notion of harm.”

The appeals panel is hearing Wilcox and Harris’s cases together, after two Obama-appointed federal district judges determined that their firings were unlawful.

U.S. District Judge Beryl Howell deemed Wilcox’s firing “null and void,” needling Trump for “pushing the bounds of his office,” while U.S. District Judge Rudolph Contreras said the president “lacks the power to remove Harris from office at will” because he failed to give a lawful reason.

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