Dec. 5 (UPI) — U.S. presidents have the power to fire members of the National Labor Relations Board and the Merit Systems Protection Board, a federal appeals court ruled on Friday.
A three-judge panel at the U.S. Court of Appeals for the District of Columbia ruled 2-1 that NLRB and MSPB positions are at-will and can be ended at any time without cause.
The ruling overturns several lower court rulings to the contrary in cases in which plaintiffs sought to stop President Donald Trump‘s attempts to fire members of both boards, CNBC reported.
“Congress may not restrict the president’s ability to remove principal officers who wield substantial executive power,” the majority decision said, while citing a 2020 ruling in the Seila Law LLC v. Consumer Protection Financial Bureau federal case.
Prior rulings that relied on fired board members did not apply to the NLRB and the MSPB because they “wield substantial powers that are both executive in nature and different from the powers” cited in the 1935 Humphrey’s Executor case that established protections against removal, the majority ruled on Friday.
“Congress cannot restrict the president’s ability to remove NLRB or MSPB members,” Judge Gregory Katsas wrote in the 37-page majority opinion, with Judge Justin Walker agreeing.
The NLRB hears and rules on matters involving labor relations, while the MSPB’s purview regards appeals filed by federal employees.
Dissenting, Judge Florence Pan said the majority ruling makes”us the first court to strike down the independence of a traditional multimember expert agency.”
“It appears that no independent agencies may lawfully exist in this country,” Pan said.
The majority opinion “suggests that no agencies can be independent” and “redefine[s] the type of executive power that must be placed under the exclusive command of the president and effectively grant[s] him dominion over approximately 33 previously independent agencies.”
Katsas and Walker are Trump appointees to the federal court, while Pan is a Biden appointee.
The case involved the removal of former NLRB member Gwynne Wilcox, who was the first black woman to serve on the NLRB and the first black woman to chair it, and Cathy Harris from the MSPB in February.
Trump removed Wilcox from the board on Jan. 27 and ahead of her term’s expiration date of Aug. 27, 2028. It was her second term as an NLRB board member, according to the NLRB.
Wilcox’s firing left the NLRB with only two board members, which deprived it of the quorum needed to decide related cases.
Harris also was scheduled to serve in her respective position on the MSPB until 2028.
