WASHINGTON (AP) 鈥� An appeals court that can fire two board members of independent agencies handling labor issues from their respective posts in the federal government.
A divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed to lift orders blocking the Trump administration from removing Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox.
On March 4, U.S. District Judge Rudolph Contreras ruled that Trump illegally tried to fire Harris. Two days later, U.S. District Judge Beryl Howell ruled that Trump did not have the authority to remove Wilcox.
The Justice Department asked the appellate court to suspend those orders while they appeal the decisions.
President Joe Biden nominated Harris to the MSPB in 2021 and nominated Wilcox to a second five-year term as an NLRB member in 2023.
Circuit Judge Justin Walker, a Trump nominee, said the administration likely will succeed in showing that the statutory removal protections for NLRB and MSPB members are unconstitutional.
鈥淭he Government has also shown that it will suffer irreparable harm each day the President is deprived of the ability to control the executive branch,鈥� Walker wrote.
Judge Karen LeCraft Henderson, who was nominated by Republican President George H.W. Bush, wrote an opinion concurring with Walker. Henderson said she agrees with Walker on many of the "general principles鈥� about the contours of presidential power under the Constitution.
Judge Patricia Millett, who was nominated by Democratic President Barack Obama, wrote a dissenting opinion. She said her two colleagues on the case 鈥渞ewrite controlling Supreme Court precedent and ignore binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits.鈥�
鈥淭he stay decision also marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld,鈥� Millett wrote.
Government lawyers argued that Trump had the authority to remove both board members. In , they said Howell鈥檚 鈥渦nprecedented order works a grave harm to the separation of powers and undermines the President鈥檚 ability to exercise his authority under the Constitution.鈥� They that MSPB members like Harris are removable 鈥渁t will鈥� by the president.
Trump couldn鈥檛 fire her without notice, a hearing or identifying any 鈥渘eglect of duty or malfeasance in office鈥� on her part. They argued that the administration鈥檚 鈥渙nly path to victory鈥� is to persuade the U.S. Supreme Court to 鈥渁dopt a more expansive view of presidential power.鈥�
Harris鈥� attorneys claimed the administration was asking the appeals court to ignore Supreme Court precedent.
鈥淢ake no mistake: The government鈥檚 radical theory would upend the law,鈥� . 鈥淚t would jeopardize not only this board, but also the Federal Reserve Board and other critical entities, like the Securities and Exchange Commission.鈥�
The five-member NLRB lacked a quorum after Wilcox鈥檚 removal. The three-member MSPB enforces civil rights law in the workplace.
Michael Kunzelman, The Associated Press
