Trump Can Fire Two Agency Heads, Appeals Court Says (2)

Donald Trump can fire members of two independent agencies, a divided federal appeals court in Washington ruled, boosting the president’s efforts to dramatically reshape the US government.

In a 2-1 order issued Friday, the US Court of Appeals for the DC Circuit halted decisions by lower court judges that blocked Trump’s removal of National Labor Relations Board Chair Gwynne Wilcox and Cathy Harris, a member of the Merit Systems Protections Board.

The cases represent key tests of Trump’s ability to reshape US agencies that were designed by Congress to operate at some distance from the policies — and politics — of the president. Conservatives have opposed limits on the president’s power to remove executive branch officials, and the US Justice Department under Trump signaled early on that it would argue in favor of freeing the president to decide who leads agencies that wield executive authority.

In a statement provided by her attorney, Harris said, “I respectfully disagree with this decision and will be filing papers very soon that ask the full Court of Appeals to review it.” If that fails, she and Wilcox could ask the US Supreme Court to intervene.

Wilcox’s lawyer Deepak Gupta said in a statement that their legal team is “confident in our case and look forward to presenting our arguments in court to ensure that the NLRB can continue its vital work protecting workers’ rights.”

The Justice Department released a statement calling the order “a victory for common sense and the American people who elected President Trump. No unelected activist judge should be allowed to usurp executive power.”

A spokesperson for the White House did not immediately respond to a request for comment.

Read More: Emboldened Trump Signals Long Court Fight to Expand Power

In the short-term, the removal of Wilcox and Harris will leave both bodies without a quorum to operate. Circuit Judge Patricia Millett, who dissented from Friday’s order, wrote that the decision will “leave languishing hundreds of unresolved legal claims.” The NLRB broadly considers unfair labor claims, while the MSPB presides over claims from federal government workers.

The DC Circuit’s order comes as US officials under Trump are carrying out sweeping cuts to the federal workforce, spurring legal challenges in federal courts as well as before the MSPB.

The DC Circuit panel’s two Republican appointees sided with the administration. Judge Justin Walker, who was confirmed during Trump’s first term, wrote the district court judges who kept Wilcox and Harris in their posts had adopted an “expansive” interpretation of a key 1930s-era Supreme Court decision on presidential power that was narrowed by later rulings from the justices.

Walker said that he believed the public interest favored letting Trump exercise his preferences over the two agencies. Judge Karen LeCraft Henderson, appointed to the DC Circuit by the late president George H.W. Bush, also sided with the administration.

“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,” Walker wrote.

Millett accused her colleagues of rewriting Supreme Court precedent and ignoring past circuit decisions that were still binding. Millett, appointed under former President Barack Obama, said that the appeals court was supposed to only intervene on an emergency basis “to avoid instability and turmoil.”

“But the court’s decision today creates them,” she wrote.

The cases are Harris v. Bessent, 25-5037, DC Circuit, and Wilcox v. Trump, 25-5057, DC Circuit.

(Updates with statement from DOJ.)

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Steve Stroth

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