Chief Justice John Roberts has issued a temporary stay of a decision by the U.S. Court of Appeals for the District of Columbia that barred the Trump Administration from firing members of two independent agency boards.
The stay follows a 7-4 appeals court decision that Cathy Harris, the chairwoman of the Merit Systems Protection Board, and Gwynne Wilcox, a member of the National Labor Relations Board, should return to their jobs. President Trump had fired the two women.
The administration asked for the stay and for the Supreme Court to consider the case in May.
“This case raises a constitutional question of profound importance: whether the president can supervise and control agency heads who exercise vast executive power on the president’s behalf, or whether Congress may insulate those agency heads from presidential control by preventing the President from removing them at will,” Solicitor General D. John Sauer, wrote.
The case is being closely watched by independent agencies as it is a test of Trump’s power over boards or similar bodies governing those agencies. For instance, Trump has dismissed two Democratic members of the FTC. Those two commissioners, Alvaro Bedoya and Rebecca Slaughter, also have filed suit challenging their dismissals.
The eventual fate of the fired members of the independent boards remains uncertain.
When the appeals court said that Harris and Wilcox may only be fired for cause, it relied on two Supreme Court ruling, Humphrey’s Executor and Weiner v United States that upheld that argument.
But the Trump Administration said a prohibition on the president’s ability to remove members of independent agencies is unconstitutional.
The administration is asking the Supreme Court for an emergency stay of the court’s ruling, contending that Humphrey’s does not apply to multimember agencies that wield substantial executive power.
“The President should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the Administration’s policy objectives for a single day—much less for the months that it would likely take for the courts to resolve this litigation,” the Solicitor General argued.
The full appeals court disagreed.
Discussing Humphrey’s Executor, and Weiner, the court said, “The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it.”
“The Supreme Court’s repeated and recent statements that Humphrey’s Executor and Wiener remain precedential require denying the government’s emergency motions for a stay pending appeal,” the appeals court added.