Humphrey’s Executor Watch Update: DC Circuit holds oral argument on MSPB and NLRB firings

Today the D.C. Circuit held oral arguments in the Wilcox and Harris cases which challenge the President’s removal of MSPB and NLRB board members without cause. The administrative stay of a district court order instating the members is on the Supreme Court emergency docket, but D.C. Circuit held oral arguments on the merits of these combined cases.

The court is trying to “harmonize,” in the words of Judge Gregory Katsas, the 1935 Humphrey’s Executor and the 2019 Seila Law decisions. Under the Supreme Court’s holding in Seila Law, removal protections for principal officers are constitutional for multi-member bodies that do not wield substantial executive power under the precedent established by Humphrey’s Executor. The Seila Law decision called this standard the “outermost constitutional limits of permissible congressional restrictions on the President’s removal power” of principal officers.

Judges Florence Pan and Katsas expressed displeasure in the Justice Department’s unwillingness to define the bounds of its argument that adjudicatory agencies like the MSPB and NLRB wield substantial executive power. The government argued that other agencies are not at issue in these cases. Judges Katsas and Pan showed reluctance to find removal protection for these board members are unconstitutional without knowing how that ruling would affect the Federal Reserve, adjudicatory bodies such as “Article I” courts (e.g., the Tax Court and the Court of Appeals for the Armed Forces), and purely adjudicatory agencies such as the Occupational Safety and Health Review Commission.

Judge Pan is likely to vote to uphold the district court ruling that the removals were unlawful. Judge Justin Walker, who was largely quiet during oral argument, made his position clear in the stay matter that the MSPB and NLRB do wield substantial executive power and removal protections for its board members are unconstitutional. Judge Katsas is the swing judge. He asked detailed questions to understand the nature of the authority of NLRB and MSPB board members in order to determine whether they wield substantial executive power. While I think he’s likely to vote with Pan and punt the issue to the Supreme Court, it’s possible that Katsas could find that an NLRB board member wields substantial executive power while an MSPB member does not.