The Trump administration on Wednesday asked the Supreme Court for an emergency order to oust board members who oversee independent agencies as a constitutional fight about presidential power plays out.
The quick appeal to the high court follows a ruling two days earlier in which a divided appeals court in Washington, D.C., restored two board members to their jobs for now. They were separately fired from agencies that deal with labor issues, including one with a key role for federal workers as President Donald Trump aims to drastically downsize the workforce.
The immediate issue confronting the justices is whether the board members, appointed by former President Joe Biden, can keep their jobs while the larger fight continues over what to do with a 90-year-old Supreme Court decision known as Humphrey's Executor. In that case from 1935, the court unanimously held that presidents cannot fire independent board members without cause.
The ruling has rankled conservative legal theorists, who argue it wrongly curtails the president's power. The Supreme Court narrowed its reach in a 2020 decision.
The administration asked for the appellate ruling to be blocked for now, but also suggested the justices should take up and decide the broader issue of presidential power.
The U.S. Court of Appeals for the District of Columbia Circuit voted 7-4 to return Gwynne Wilcox to the National Labor Relations Board and Cathy Harris to the Merit Systems Protection Board while their cases play out. The action of the full appeals court reversed a judgment from a three-judge panel that had allowed the firings to proceed.
The NLRB resolves hundreds of unfair labor practice cases every year. The five-member board lacked a quorum after Wilcox's removal. Wilcox was the first Black woman to serve on the NLRB in its 90-year history. She first joined the board in 2021, and the Senate confirmed her in September 2023 to serve a second term expected to last five years.
The other board in the case reviews disputes from federal workers and could be a significant stumbling block as the administration seeks to carry out its workforce cuts.
Solicitor General D. John Sauer told the Supreme Court that the board members' reinstatement "causes grave and irreparable harm to the President and to our Constitution's system of separated powers." Harris and Wilcox are removable "at will" by the president, Sauer wrote.
In the lower courts, Wilcox's attorneys said Trump could not fire her without notice, a hearing or identifying any "neglect of duty or malfeasance in office" on her part.
Perhaps foreshadowing the coming confrontation, the attorneys argued that the administration's "only path to victory" was to persuade the Supreme Court to "adopt a more expansive view of presidential power."