WASHINGTON – In a win for President Donald Trump in his efforts to take control over independent agencies, the Supreme Court allowed him on May 22 to keep two Democratic members of federal labor boards away from their posts while their challenge to his firing of them proceeds. But it also suggested that the Federal Reserve Board of Governors would be exempt from any future decisions in the cases.
The high court signaled in its opinion that it may ultimately overturn a 1935 precedent and side with Trump in the underlying cases, allowing him to permanently remove without cause members of boards that Congress created to be independent of direct presidential control. But the court also indicated that it would distinguish between the Fed and other agencies.
The court temporarily blocked orders by two separate Washington-based federal judges that had shielded Cathy Harris from being dismissed from the Merit Systems Protection Board (MSPB) and Gwynne Wilcox from being removed from the National Labor Relations Board (NLRB) before their terms expire. Their legal challenges are ongoing in lower courts.
Both were appointed to their posts by Trump’s Democratic predecessor Joe Biden.
In a brief, unsigned opinion, the court said that its action on Thursday “reflects our judgment that the government is likely to show that both the NLRB and MSPB exercise considerable executive power.”
“Because the Constitution vests the executive power in the president,” the court wrote, “he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.”
The court has a 6-3 conservative majority. Its three liberal justices dissented from the opinion.
The opinion also addressed fears voiced by critics that allowing the firings of Wilcox and Harris would jeopardize the independence of the Federal Reserve.
“We disagree,” the court stated. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”
The legal fight over these firings emerged as an important test of Trump’s efforts to bring under his sway federal agencies meant by Congress to be independent from the president’s direct control.
Trump’s move to oust Harris and Wilcox was part of his far-reaching shakeup and downsizing of the U.S. government, including firing thousands of workers, dismantling federal agencies, installing loyalists in key jobs and purging career officials.
Chief Justice John Roberts on April 9 temporarily halted orders by the two judges who had blocked Trump’s firing of Harris and Wilcox, giving the justices more time to decide how to proceed. The labor boards after that decision by Roberts had confirmed that Harris and Wilcox were no longer in their posts.
U.S. District Judges Rudolph Contreras and Beryl Howell separately upheld federal laws protecting officials serving in these posts from being fired without cause, rejecting Trump’s argument that the measures passed by Congress encroach on authority granted to the president under the U.S. Constitution.
The U.S. Court of Appeals for the District of Columbia Circuit on April 7 declined to pause the rulings by the judges while the cases proceed after an earlier ruling by that court had permitted the removals.
Harris was appointed by Biden in 2022 to serve a seven-year term. Trump moved to fire her on February 10 after naming Henry Kerner, a Republican, as acting chair of the Merit Systems Protection Board.
Federal workers who lose their jobs can bring a challenge before the merit board, an independent three-member panel with quasi-judicial powers, seeking to be reinstated. The board has proven to be a potential roadblock to the Trump administration’s efforts to carry out mass firings of probationary workers, meaning those recently given their positions.
Trump’s efforts to remove Harris have threatened to leave the board without a two-seat quorum – making it unable to decide cases – after the term of Democratic member Raymond Limon expired on February 28.
In ruling in favor of Harris, Contreras said the statutory protections for board members from being removed without cause conform with the Constitution in light of a 1935 Supreme Court precedent in a case called Humphrey’s Executor v. United States. In that case, the court ruled that a president lacks unfettered power to remove commissioners of the U.S. Federal Trade Commission, faulting then-President Franklin Roosevelt’s firing of a commissioner on that agency for policy differences.
Federal law permits a president to remove an official serving in this post only with cause such as inefficiency, neglect of duty or malfeasance.
Howell, the judge overseeing Wilcox’s case, ruled on similar grounds to uphold almost identical job protections for the National Labor Relations Board member.
The National Labor Relations Board, which has five members when fully stocked, enforces laws protecting the rights of private-sector workers to organize, join labor unions and advocate for better working conditions, and it oversees union elections. Federal labor law generally does not allow workers to sue for violations in court, so the board is often their only recourse.
Wilcox, the first Black woman to serve on the National Labor Relations Board, was appointed to a second five-year term in 2023 by Biden for a new term. Trump moved to fire her on January 27. Without Wilcox, the board would lack its needed three-seat quorum because it already had two vacancies.
This article originally appeared on USA TODAY: Supreme Court lets Trump keep labor board members sidelined for now
