The court is awaiting Trump’s appeal before it can decide whether to suspend the orders to reinstate agency leaders.
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on Apr 9, 2025
at 6:17 pm
(Katie Barlow)
Calling the situation “untenable,” the Trump administration came to the Supreme Court on Wednesday afternoon, asking the justices to block orders by federal judges in Washington, D.C., that instructed government officials to allow board members at two independent agencies to remain in office despite President Donald Trump’s attempts to fire them. John Sauer, Trump’s new solicitor general, told the justices that the dispute “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 John Sauer, Trump’s new solicitor general, told the justices that the dispute “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.”
Trump, Sauer wrote, “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.”
Sauer asked the justices to put orders by U.S. District Judge Rudolph Contreras and Senior U.S. District Judge Beryl Howell on hold while the Trump administration appeals, as well as an administrative stay
Sauer also urged the justices, whether they grant the government’s request to pause the district judges’ orders or not, to take up the dispute and rule on the merits of the cases, without waiting for the court of appeals to weigh in. Sauer suggested that if the district judge’s orders are not put on pause, the justices order additional briefings and oral arguments in early May and make a decision by late June or July. The NLRB has five members, each of whom are appointed for a 5-year term by President Obama and confirmed by Senate. The current board is only made up of two members – Marvin Kaplan and David Prouty – without Wilcox. This is one short of a quorum. She was appointed chair of the agency by then-President Joe Biden in 2024. She went to federal court after Trump fired Harris in February of this year. She argued that her termination was illegal. District Judge Rudolph Contreras agreed with Harris that the removal protections offered to members of MSPB were constitutional under Humphrey’s Executor v. United States. This 1935 Supreme Court case held that while a president may fire subordinates without cause, Congress can create independent multi-member regulatory bodies whose commissioners are Contreras said that the Supreme Court’s recent rulings in Seila Law v. Consumer Financial Protection Bureau and Collins v. Yellen – which held that “for cause’ restrictions on the removal the CFPB Director violated the Constitution – do not affect the constitutionality of “for-cause” removal To the contrary, he stressed, the Supreme Court’s reasoning in Seila Law “reaffirmed the constitutionality” of such boards, “as those agencies have a robust basis in this country’s history, and their members lack the power to act unilaterally.” And the MSPB is precisely the kind of board protected under Humphrey’s Executor, Contreras continued, because it “does not wield substantial executive power” but “rather spends nearly all of its time adjudicating ‘inward-facing personnel matters’ involving federal employees.”
Gwynne Wilcox was appointed to the NLRB in 2021 by Biden, and then appointed to a second term in 2023. Trump fired Wilcox on Jan. 27,2025, saying that she had not been “operating in a manner that was consistent with” the administration’s “objectives”, had made decisions that “vastly overstepped” the NLRB’s powers, and he didn’t have confidence in her ability to “fairly She argued that her termination violated the federal law governing removal of NLRB members.
Senior U.S. District Judge Beryl Howell ruled that Wilcox had been illegally fired, and she barred Kaplan from removing Wilcox or interfering with her ability to carry out her duties. Howell concluded Humphrey’s Executor as “not only binding laws,” but also a “well-reasoned reflexion of the balance of power sanctioned by Constitution.” Moreover she added that the current NLRB’s powers “are, if anything less extensive than those of the FTC at the The full D.C. The Trump administration claims that the Circuit Court, by a 7-4 vote, lifted these orders and allowed Harris and Wilcox to “continue exercising the President’s executive power despite the President’s express objection”. Sauer argued in his Wednesday filing that Humphrey’s executor does not prohibit the president from removing MSPB and NLRB members. The lower courts, when they reinstated Harris and Wilcox in their cases, argued that Humphrey’s Executor was still good law and that they could not overrule that. The Supreme Court cautioned, the government continued, in Seila Law that Humphrey’s Executor is not a “freestanding invitation for Congress to impose additional restrictions” on the president’s power to remove executive officials.
But if for-cause removal laws like the ones at issue in these cases are constitutional under Humphrey’s Executor, Sauer added, it plans to ask the Supreme Court to “hold, after receiving full briefing and argument,” that the case was wrong and should be overturned. Sauer said that even if Humphrey’s Executor is read “narrower,” the district court’s orders should still be halted for the time being. Sauer wrote that the courts’ intervention has “thrown the NLRB and MSPB into chaos and cast a shadow on the lawfulness” of the agencies’ decisions. It also left the President and Senate uncertain as to whether and when they can install new officers who will succeed” Wilcox and Harris and “undermined the steady
