Appeals Court Temporarily Allows Trump’s Firing of Agency Leaders

A U.S. federal appeals court on Friday afternoon, March 28, temporarily approved the ability of President Donald Trump to remove leaders from two independent agencies while the judges more closely consider whether a President has the absolute authority to fire such officials at will.

A panel of three judges for the U.S. Court of Appeals for the District of Columbia lent credence to President Trump’s case that he was within his rights to fire National Labor Relations Board (NLRB) member Gwynne Wilcox in January and Merit Systems Protection Board (MSPB) chair Cathy A. Harris in February. Both federal agency members were appointed by then-President Joe Biden and had terms spanning until 2028.

Earlier in March, district court judges had ruled in the favor of Wilcox and Harris, allowing the agency members to return to their positions and prompting the Trump administration to file appeals.

Order Furthers the President’s Vision

Friday’s order is positive news for Trump as he continues to poke away at the verdict in the 1935 Supreme Court case Humphrey’s Executor v. United States. That historic case set the precedent that it is illegal to fire workers from independent government agencies without cause. Trump and his legal team have built the case that such shields are an unconstitutional limit on a President’s power.

The three-judge appellate court panel — two Republican-appointed, one Democratic-appointed — stated in their 114-page order that “the [g]overnment is likely to succeed in showing that the statutory removal protections for National Labor Relations Board commissioners and Merit Systems Protection Board members are unconstitutional.”

Judge Justin R. Walker, a Trump appointee, said “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.”

Walker’s statement aligns with the verbiage and tenor of two administration documents released on Feb. 18:

“Ensuring Accountability for All Agencies,” an executive order signed by the President that would allow the White House to control independent federal agencies that have traditionally operated outside of its direct supervision and influence.
“Fact Sheet: President Donald J. Trump Reins in Independent Agencies to Restore a Government that Answers to the American People,” a support document that provides additional detail and commentary on this matter.

In his February executive order, President Trump stated: “Previous administrations have allowed so-called ‘independent regulatory agencies’ to operate with minimal Presidential supervision. These regulatory agencies currently exercise substantial executive authority without sufficient accountability to the President, and through him, to the American people. Moreover, these regulatory agencies have been permitted to promulgate significant regulations without review by the President. These practices undermine such regulatory agencies’ accountability to the American people and prevent a unified and coherent execution of federal law. For the federal government to be truly accountable to the American people, officials who wield vast executive power must be supervised and controlled by the people’s elected President.”

According to the Trump administration, such power is warranted by the U.S. Constitution. “Article II … vests all executive power in the President, meaning that all executive branch officials and employees are subject to his supervision,” stated a core point in the Feb. 18 fact sheet.

Next Steps and What’s at Stake for HR and Total Rewards

Wilcox and Harris could appeal the appellate court order, or they could wait for the court to fully rule on the merits of their case, which seeks to block Trump’s takedown of Humphrey’s Executor.

Following Friday’s order, Wilcox's lawyer Deepak Gupta said in a statement: “The Trump Administration’s unprecedented removal of Gwynne Wilcox defies 90 years of Supreme Court precedent protecting the independence of critical government agencies. We are confident in our case and look forward to presenting our arguments in court.”

The case is expected to eventually make its way to the Supreme Court, where the justices could ultimately decide whether Trump’s expansive view of Presidential authority is within or outside of legal and Constitutional boundaries and whether a landmark decision critical to the separation of powers is moot.

Either way, a conclusive ruling would have great importance to the more than 50 independent federal agencies that function to regulate industries and those industries’ related practices. Among the agencies that have a strong tie to the world of human resources and total rewards are the:

NLRB, which enforces the National Labor Relations Act (NLRA), conducts elections to determine union representation and investigates allegations of unfair labor practices (e.g., wages, pay rates, working hours, work conditions).
Equal Employment Opportunity Commission (EEOC), which enforces federal laws that prohibit employment discrimination in numerous areas (e.g., hiring, firing, promotions, harassment, training, wages, benefits).
Pension Benefit Guaranty Corporation (PBGC), which was created by the Employee Retirement Income Security Act of 1974 (ERISA) to encourage the continuation and maintenance of voluntary private defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and monitor pension insurance premiums.
Securities and Exchange Commission (SEC), which requires public companies to disclose how much they pay their executives, and how that pay relates to corporate financial performance.
Social Security Administration (SSA), which assigns Social Security numbers and administers retirement, disability insurance and other benefit programs.

Historically, such agencies have operated with a measure of autonomy from the executive branch, meaning they are not directly controlled by the President or the Cabinet, and are designed to make decisions based on personal expertise and the national interest rather than short-term political considerations.

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