Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.C. Cir.: Trump’s firing of NLRB, MSPB members deemed constitutional by divided appeals court, (Dec 8, 2025)

By Marjorie Johnson, J.D.

“Because the NLRB’s rulemaking, adjudicatory, remedial, enforcement, and election-administration powers are not solely quasi-legislative or quasi-judicial, the agency falls well outside the Humphrey’s Executor exception.”

A divided panel of the D.C. Circuit held that Congress could not prohibit President Trump from removing members of the NLRB and MSPB without cause, reversing district court rulings which had upheld the constitutionality of the statutory removal protections and reinstated former NLRB member Gwynne Wilcox and MSPB member Cathy Harris—a ruling which the Supreme Court stayed pending the appeal process. The D.C. Circuit held that the agencies “wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial,” and under Seila Law LLC v. Consumer Financial Protection Bureau, “Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power.” Dissenting, Judge Pan opined that “[m]y colleagues’ substantial acceptance of the government’s maximalist theory of executive power brings us closer to autocracy, harms our nation, and violates the separation of powers” (Harris v. Bessent, Nos. 25-5037 and 25-5057 (D.C. Cir. Dec. 5, 2025)).

Dismissed without cause. Shortly after taking office, Trump removed Wilcox from the NLRB and Harris from the MSPB, despite explicit legislative restrictions on the President’s power to remove them from their respective positions prior to the expiration of their terms. Wilcox was confirmed by the Senate to a second five-year-term in September 2023 and Harris’s seven-year term was scheduled to run until 2028. The Trump administration did not claim that either board member had engaged in any conduct that would support for-cause removal under the relevant statutory restrictions and instead argued that those restrictions were unconstitutional.

District and circuit court rulings. Wilcox and Harris filed separate lawsuits to challenge their removals, and both were reinstated by the U.S. District Court for the District of Columbia. Judge Rudolph Contreras found that Trump lacked the power to remove Harris from her office at the MSPB at will, and Judge Beryl Howell came to the same conclusion with respect to Wilcox, concluding that the statutory removal protections are constitutional under Humphrey’s Executor. The government appealed and sought interim stays pending appeal. A panel of the D.C. Circuit granted the stays, but the full court vacated that decision.

SCOTUS grants stay. The Supreme Court then stayed the district courts’ orders pending the resolution of these appeals and any ensuing petitions for certiorari. The D.C. Circuit observed that in doing so, “the Court found it likely ‘that both the NLRB and MSPB exercise considerable executive power,’ which it said would make the removal restrictions unconstitutional.”

Humphrey’s Executor and Seila Law. Declining to weigh in on the future fate of Humphrey’s Executor given the Supreme Court’s agreement to reexamine the nearly 90-year precedent in Trump v. Slaughter, the D.C. Circuit ultimately found that the NLRB and MSPB “exercise significant executive powers” as set forth under Seila Law. In addition, the D.C. Circuit concluded that “[t]he powers of the NLRB and MSPB substantially exceed the circumscribed administrative powers that Humphrey’s Executor deemed to be quasi-legislative or quasi-judicial.” Quasi-legislative power includes “only legislative research functions such as investigating, writing reports, and making recommendations to Congress” while quasi-judicial “includes only the power to serve as a trial master or to act as a judge-like adjudicator without policymaking authority.” The D.C. Circuit further observed that, “[a]s Seila Law noted, neither category encompasses the powers to promulgate substantive rules or to impose civil fines.”

“Broad rulemaking authority.” First, the NLRB possesses “broad rulemaking authority,” as Section 6 of the NLRA empowers the agency to promulgate “such rules and regulations as may be necessary to carry out the provisions” of the statute. The Supreme Court has held that this power includes not only rules establishing unfair labor practices under section 8, but also industrywide rules delineating appropriate bargaining units under section 9. Utilizing such power, the NLRB has promulgated rules governing collective bargaining in the health care industry. Seila Law has made clear that “the power to ‘promulgate binding rules fleshing out’ major federal statutes exceeds the powers that Humphrey’s Executor deemed to be quasi-legislative or quasi-judicial,” and this NLRB power “is also a quintessential executive power under current constitutional standards.”

Policymaking through adjudications. Moreover, as an agency with substantive rulemaking power, the NLRB “conducts administrative adjudications that are nothing like the model of adjudication that Humphrey’s Executor treated as quasi-judicial.” Because the agency is tasked with developing and applying national labor policy, it may announce new principles that are akin to “statutory’ rules” in its own adjudicative proceeding, and has done so routinely. The NLRB also routinely invokes “policy” considerations by adjudication in order to overrule them.

Broad remedies, litigation authority. Further distinguishing the NLRB and MSPB from Humphrey’s Executor, the NLRB may award substantially broad remedies, including not only cease-and-desist orders, but also affirmative actions including reinstatement and compensatory damages. The Board has also compelled employers to read specific admissions of liability, which the D.C. Circuit noted one district court has “likened to the practices of Joseph Stalin and Mao Zedong.” The agency’s greater authority to litigate on behalf of the United States also reflects a greater degree of executive power. Finally, the NLRB exercises substantial executive power in administering section 9 of the NLRA, which governs the determination of appropriate units for collective bargaining and the conduct of union elections.

MSPB’s powers. The D.C. Circuit similarly concluded that the MSPB has more executive powers than ones that Humphrey’s Executor deemed to be quasi-legislative or quasi-judicial.

The agency “has at least some substantive rulemaking power; it administers a host of wide-ranging federal statutes; it awards various kinds of affirmative, compensatory, and punitive relief; and it litigates in court on its own behalf.” Accordingly, as with the NLRB members, Congress may not restrict the President’s ability to remove MSPB members.

Disregard removal restrictions. The “constitutional problem” to be resolved arose from two features of the NLRB and MSPB, explained the D.C. Circuit. First, they were each vested with significant executive power that could not be characterized as quasi-legislative or quasi-judicial. Second, Congress has restricted the President’s ability to remove the members of each agency.

Though Wilcox and Harris proposed that the best way to resolve this matter would be to strip away agency powers and let them remain at their posts, the D.C. Circuit was unconvinced. “When the Supreme Court encounters a statute that unconstitutionally insulates an executive officer from at-will removal, it has typically responded by disregarding the removal restriction.” Therefore, “the appropriate resolution here is to disregard the statutory removal restrictions for NLRB and MSPB members, not to blue-pencil provisions from among the full panoply of the executive powers of each agency.”

Dissent. In a lengthy dissent, Judge Pan vehemently opposed the majority’s reasoning and opined that, “the MSPB and the NLRB fall squarely within the exception to the President’s at-will removal authority that the Supreme Court acknowledged in Humphrey’s and left ‘in place’ in Seila Law.” In particular, neither agency performs “any quintessentially executive functions,” such as investigating and prosecuting cases to execute the law or involvement in foreign affairs or national defense. Rather the agencies are predominantly adjudicatory and wield less executive power than did the 1935 FTC examined in Humphrey’s.

“Although my colleagues attempt to couch their analysis in narrow terms, they redefine the type of executive power that must be placed under the exclusive command of the President, and effectively grant him dominion over approximately thirty-three previously independent agencies,” and by doing so have effectively eviscerated Humphrey’s Executor, with “the practical effect of outlawing independent agencies in this country.”

The case is Nos. 25-5037 and 25-5057.

Judge: Katsas, G.

Attorneys: Neal Kumar Katyal (Milbank) for Cathy A. Harris. Harry Graver, U.S. Department of Justice, for Scott Bessent.

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