Federal appeals court judges were divided over President
During oral argument Friday, the two Trump appointees on a three-judge panel of the US Court of Appeals for the District of Columbia sent different signals on whether they think Trump could legally fire members of the National Labor Relations Board and Merit Systems Protection Board.
Judge Justin Walker fully supported the administration’s argument for the terminations, while Judge Gregory Katsas asked a series of substantive questions in an attempt to resolve what he called a “hard case.”
Judge Florence Pan, a Biden appointee, clearly signaled that she would rule against the administration.
The D.C. Circuit panel’s eventual decision on the Trump administration’s bid to expand presidential removal power will be an important step in the issue’s all-but-certain march to the Supreme Court.
The administration argued that the for-cause removal requirements shielding NLRB member Gwynne Wilcox and MSPB member Cathy Harris are invalid under the high court’s current understanding of Humphrey’s Executor v. U.S, a 1935 ruling that permitted such firing safeguards.
Trump has fired high-ranking officials at several independent agencies, including those at the Federal Trade Commission and the Federal Labor Relations Authority who have job protections like members of the NLRB and MSPB. Federal Reserve Chairman Jerome Powell, who Trump has raised firing before walking that back, has similar removal shields.
Expanding presidential authority to fire officials is a key component to Trump’s effort to seize control of independent agencies and require that they conform to his interpretations of the law.
‘Unitary, Energetic Executive’
The Trump administration’s vision of a president with the power to bring nearly all independent agencies to heel was on display during Justice Department attorney Harry Graver’s nearly hour-long turn at the D.C. Circuit lectern Friday.
Graver’s advocacy echoed the unitary executive theory, a disputed understanding of the Constitution that views all executive power belonging to the president.
“It is a unitary, energetic executive that answers to the people,” Graver said.
The lines of accountability become “blurred” and “the system starts to fall apart” if the president can’t fire agency officials, Graver said. President Joe Biden not taking responsibility when the Consumer Product Safety Commission said it was considering banning gas stoves, and instead blaming it on the independent agency’s policy judgement after there was political blowback, shows the tangible harm those blurred lines can cause, he said.
Recent Supreme Court precedent narrowed Congress’s ability to limit the president’s firing power recognized in Humphrey’s Executor—especially 2020’s Seila Law v. CFPB—so that officials who wield substantial executive power can be axed at will, he said.
When Pan asked Graver to name any independent agency that could have firing shields for its officials under the administration’s view of a narrowed Humphrey’s Executor, he cited the Administrative Conference of the United States, an advisory commission that makes recommendations on how agencies can operate more effectively.
But Graver refused to specifically say whether the removal protections for the Federal Reserve chair would be invalid under the administration’s view, despite repeatedly being pressed by Pan.
Markers of Executive Power
Katsas asked whether judges on legislative tribunals, including the Tax Court and Court of Appeals for the Armed Forces, as well as officials on purely adjudicative agencies like the Occupational Safety and Health Review Commission, would be subject to at-will removal.
Graves resisted providing specifics, but said whether or not an agency performs an adjudicatory function is not the test of whether Humphrey’s Executor applies.
If a person is a member of an executive agency, that person is exercising executive power, Graves said.
Katsas also questioned counsel for Wilcox and Harris about different aspects of the NLRB and MSPB and whether they qualified as executive power.
If the court just uses the Seila Law test on its face and applies broad views of what counts as executive power, “this is an easy case and you lose,” Katsas said to Harris’ lawyer, Nathaniel Zelinsky of Milbank LLP.
“The reason why it’s a hard case is we also have to give some reasonable effect to Humphrey’s,” Katsas continued. “That’s why I’m trying to think of something to place agencies on this spectrum.”
The judge seemed to find more markers of executive power with the NLRB than the MSPB based on his colloquies with Zelinsky and Wilcox’s lawyer, Deepak Gupta of Gupta Wessler LLP, including that agency’s substantive rulemaking authority.
The cases are Wilcox v. Trump, D.C. Cir., No. 25-05057, oral argument held 5/16/25 and Harris v. Bessent, D.C. Cir., No. 25-05037, oral argument held 5/16/25.
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