Supreme Court allows Trump to fire federal employee appeals board members at will

The Supreme Court on Thursday allowed President Trump’s firing of the Democratic member of the quasi-judicial agency that hears appeals of firings and suspensions of federal employees to remain in effect, with a majority of the justices saying her dismissal was likely lawful. 

The decision, which impacted Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox, breaks with a 90-year precedent that protected such independent boards from having members serve at the pleasure of the president. Harris and Wilcox have argued that their firings are unlawful because they violate Humphrey’s Executor, a 1935 Supreme Court decision that found the president doesn’t have unfettered authority to remove officials on multimember, quasi-judicial bodies.

The majority on the court said “the government is likely to show that both the NLRB and MSPB exercise considerable executive power” and therefore were subject to at-will dismissals at the whims of the president.

The court did not rule on the full merits of the case, however, and noted the officials may yet be subject to exceptions created by Humphrey’s. It will not rule on that element of the case until the U.S. Court of Appeals for the D.C. Circuit issues its full opinion, which is still forthcoming. Additionally, the majority said, the government faces greater potential harm from Wilcox and Harris continuing to serve in their roles than those individuals face from being unable to perform their duties. 

Harris and Wilcox have already gone through several iterations of firings and rehirings based on the rulings of various levels of federal court. Last month, the Supreme Court allowed the pair to be fired in another preliminary ruling after a majority of all judges on the U.S. Court of Appeals for D.C. Circuit had ruled in their favor on a temporary basis. 

In a dissenting opinion signed by the three liberal-leaning members of the court, Justice Elena Kagan said President Trump has chosen to "take the law into his own hands." The majority "blesses those deeds,” she said, and is circumventing the usual process for overturning longstanding precedent. She added the majority opinion was "extraordinary" and the court’s rush to intervene in the case belies how it will eventually come down in a full ruling. 

“The impatience to get on with things—to now hand the president the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go,” Kagan said. 

The Supreme Court decision affirms MSPB’s status without a quorum on its central board, which is currently experiencing a surge in cases as a result of Trump’s mass removals of government workers. Administrative judges at the regional level can still issue initial rulings, but appeals to the central board will languish until a quorum is restored.