Taking Stock of All The Removal Cases

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The Trump Administration is testing all the precedents and norms regarding removal of Federal appointees from boards, commissions, and government-affiliated entities. Many of these examples concern what Professor Anne Joseph O'Connell of Stanford Law School calls "boundary organizations" at the intersections between government and private sector and between branches of the federal government. For each entity, Congress had a reason to create a "boundary organization" instead of a traditional agency - avoiding political pressure, leveraging specialized expertise that would not be available to a traditional government agency, to balance competing interests, to operate with private-sector flexibility while serving public purposes. Many boundary organizations have unique statutory features for the appointment and removal of board members.

With nine active cases across federal courts, including six at the appeals level and two with Supreme Court involvement, it is a good time to see what patterns are emerging and what lessons can be drawn. For an overview of each case and its status, see our Removal Litigation Tracker.

The most important recent development was the Supreme Court's May 2025 decision to grant a stay of a lower-court order that would have essentially reinstated members of the National Labor Relations Board and Merit Systems Protection Board. Underpinning the Court's analysis was its tentative conclusion that board members of these entities "exercise considerable executive power." Critically, the Court left open as to what "executive power" means. A lack of clarity surrounding the meaning of "executive power" has been a fundamental question ever since the 1935 Humphrey's Executor case, which found that "for cause" removal for Federal Trade Commissioners was constitutional. The meaning of the term "executive power" will likely be the determining factor for boundary organizations in challenges to removal of their board members and senior leaders. The executive power analysis is fact-intensive and dependent on the specific authority and functions of each organization.

Notably, the Supreme Court carved out the Federal Reserve from its analysis, describing it as a "uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States." This carve-out appears transparently designed to avoid severe market reactions to uncertainty about Federal Reserve independence. More ordinary boundary organizations should not expect to benefit from such special treatment.

Two Legal Patterns Emerging from 2025 Boundary Organization Cases

The current cases follow two distinct constitutional patterns based on the type of officer involved:

Pattern 1: Staff/Officer Removal After Board Termination (Inferior Officers)

The Inter-American Foundation is an "agency" and a "nonprofit corporation" that promotes economic growth and democratic governance in Latin America and the Caribbean through partnerships with local organizations. Its board is appointed by the President of the United States with Senate confirmation. In February 2025, the President removed all of the IAF board members and appointed an Administration official as "acting" Board member, who then purported to fire the foundation's president and name himself the acting president.

Note that the firing of the board of directors was not at issue; the issue was the appointment of the rump board and the firing of the foundation's president. In granting a preliminary injunction, the court found that the foundation's president was an "inferior officer," which means that Congress can insulate that officer from being removed by the President directly. The court also found that the rump board member was appointed without legal authority. It found that the Federal Vacancies Reform Act did not apply and that the IAF's organic statute does not allow for "acting" board members. Consequently, no one is currently legally authorized to fire the foundation's president until the Senate confirms a new board member. The government argued that this was an untenable situation which justifies the President's use of "inherent" power under the Constitution to appoint acting board members. This argument was dismissed by the court. To liberally paraphrase the court, it essentially said to the Administration, "congratulations, you played yourself."

A second case with almost identical material facts involves the African Development Foundation. The African Development Foundation was established by Congress as a "body corporate" and a "nonprofit corporation." Like the IAF, its board is appointed by the President of the United States with Senate confirmation. The ADF supports grassroots development initiatives across Africa. This case has not been decided either on the merits or the request for injunctive relief, but the court will surely take note of the IAF decision.

Pattern 2: Board/Commission Member Removal (Principal Officers)

In these cases, the President attempted to remove board members who are "principal officers" under the Appointments Clause.

In the first case, the President attempted to remove the board of the U.S. Institute of Peace without the required statutory causes and without following the statutory procedures applicable to that entity. At the temporary restraining order (TRO) stage, the institute apparently held to the position that it was not governmental at all. The court expressed that the argumentation on both sides was insufficient to grant a TRO. As the proceeding developed, the institute developed more nuanced arguments about its placement in the government, but not in the Executive Branch, and about its absence of executive power, which should protect board members from arbitrary removal under Humphrey's Executor. On motions for summary judgment, the court applied a framework most recently applied to Amtrak (Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), and Association of American Railroads v. U.S. Department of Transportation, 575 U.S. 43 (2015)) to determine whether USIP should be considered governmental for constitutional purposes.

An important constitutional principle from the Amtrak cases is that an organization can be governmental for constitutional purposes, but non-governmental for statutory purposes. This distinction protects liberty by ensuring that when entities exercise government power, they remain subject to constitutional constraints. Congress cannot simply outsource governmental power to entities that do not need to follow the Constitution.

After examining the institute's powers and functions, the court concluded that USIP is, in fact, governmental. However, it also concluded that it was not part of the Executive Branch and therefore its board was not subject to Presidential removal. Likely seeking to protect this finding from reversal by a higher court, the court also held that even if the institute were in the Executive Branch, it did not exercise executive power. It concluded that its role as an advisory and scholarly organization was not "executive." It found that the removal of board members was unlawful on this theory as well.

A second case involving board member removals concerns the Corporation for Public Broadcasting (CPB). In this case, the President purported to remove Democratic members of the CPB board of directors. The Corporation for Public Broadcasting is a nonprofit corporation that distributes federal funding to public television and radio stations nationwide. While CPB receives annual congressional appropriations, this represents only about 15% of total funding for the broader public broadcasting system. Like USIP, CPB has argued that it is not governmental at all. The CPB case has had no decisions on injunctive relief or the merits to date.

Federal-Private Boundary Organizations Must Focus on Lack of Executive Power

Boundary organizations' arguments claiming non-governmental status have not proven successful. The Supreme Court has already shown in the Amtrak cases that it interprets "governmental" fairly broadly. When the courts applied the Amtrak cases test, boundary organizations receiving federal funding and having federally-appointed leadership have faced an uphill battle convincing courts that they are not governmental. As noted above, USIP did not convince the district court that it was non-governmental at the TRO, but eventually made successful arguments about the institute's placement outside the Executive Branch and its lack of executive power. The court applied the Amtrak cases test in concluding that USIP was indeed a governmental entity. Under the Amtrak cases, statutory language that an entity is not an agency or instrumentality of the government does not carry much, or any, weight in constitutional controversies. Nevertheless, the Corporation for Public Broadcasting has argued that its organic statute is distinguishable from Amtrak on several grounds. For instance, it argues that Amtrak was "established" by Congress, but CPB was merely "authorized." It remains to be seen how the Supreme Court majority would view these arguments. The Court is unlikely to give much weight to a technical verb choice in a law enacted about 60 years ago. It is more likely that the court would focus on Congress's instrumental role in instigating the creation of CPB as well as its funding and control through appointments to the board.

Even if a federal-private boundary organization is "governmental," all is not lost for board members challenging their removal. The Supreme Court's May 2025 stay opinion affirms that the critical constitutional inquiry is whether an organization exercises "executive power." The Court's analysis distinguishes between officers who exercise "considerable executive power" versus those protected by "narrow exceptions recognized by our precedents." The stay opinion suggests that "quasi-legislative" and "quasi-judicial" functions will be construed as executive, even though the court in the 1935 Humphrey's Executor case did not. While USIP did not construct an executive authority argument - the court did it on its own - CPB has so far focused on its argument that it is non-governmental. CPB may elect to focus on its lack of executive power as this case develops.

So what authorities can be "non-executive"? The USIP court relied on the institute's role as an advisory and scholarly organization in finding that it was not "executive." At a motions hearing in the MSPB and NLRB board member removal cases, when asked what government entity might not exercise "executive power," the attorney for the government answered that perhaps the purely advisory Administrative Conference of the United States may be an example (with the caveat that that was not necessarily the position of DOJ). Some possible examples of non-executive activity may include:

• Subgranting federal funds
• Cultural and educational missions
• Commercial and business functions
• Advisory and consultative roles

Looking Forward

The cases discussed above are still pending. Some have pending proceedings on the merits and on appeals of denials of stays.

In addition, organizations that exist at the border of the branches of government are facing similar challenges. The impact of the President's refusal to notify Congress 30 days in advance of an Inspector General removal is also pending in federal court. Then in late May and early June, a pattern of systematic targeting of governmental entities thought to be outside the Executive Branch emerged. The Smithsonian Institution saw the President purportedly fire one of its museum heads. The President also removed the Librarian of Congress and the head of the library's Copyright office. Reports that a DOGE attempt to infiltrate the Government Accountability Office (GAO) shocked many. The leadership of GAO faces additional risk as the current Comptroller General's term ends later this year and the President makes that appointment.

While the Library of Congress and GAO are typically viewed as part of the legislative branch, when you get into the details of federal law and case law, the picture is not so clear-cut. Congress has some clean-up to do if it wants to remain pre-eminent on its home turf of Capitol Hill.

The judiciary may also face challenges with regard to its reliance on the Executive-controlled marshal's service for security as the Trump Administration ramps up pressure on the courts.