'Paves the way to autocracy': Biden-appointed judge loses it on conservative majority for blessing 'excessive' Trump firing powers, has grim warning

Ahead of a Monday oral argument at the U.S. Supreme Court, as a 90-year-old firing protection precedent hangs in the balance, the federal appeals court for Washington, D.C., on the strength of a 2-1 majority appointed by President Donald Trump, reversed the lower courts and blessed the ousters of Democratic members at two independent agencies.

With Trump-appointed U.S. Circuit Judges Neomi Rao and Gregory Katsas in the majority, the D.C. Circuit held that, despite congressional attempts to rein in the executive, the president can fire members of the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB) without cause.

Katsas, writing for the majority, opined that Congress "may not restrict the President's ability to remove principal officers who wield substantial executive power," meaning that, contrary to the lower courts' views, NLRB member Gwynne Wilcox and MSPB Chair Cathy Harris have "substantial powers that are both executive in nature and different from the powers" Humphrey's Executor deemed to be "merely quasi-legislative or quasi-judicial" when that 1935 precedent upheld a statute insulating the Federal Trade Commission (FTC) head from being fired except for "inefficiency, neglect of duty, or malfeasance in office."

"We reverse," Katsas wrote, referring instead to SCOTUS' 2020 decision in Seila Law v. Consumer Financial Protection Bureau (CFPB) and concluding that Trump "permissibly removed Wilcox and Harris."

In March, the Trump administration urged the D.C. Circuit to halt and reverse a district judge's order reinstating Harris, arguing that Seila Law was clear that the notion the CFPB director could only be removed for causes of "inefficiency, neglect, or malfeasance" violated the separation of powers, because the president's authority under Article II of the Constitution "generally includes the power to supervise—and, if necessary, remove—those who exercise the President's authority on his behalf," such as "lesser executive officers."

Later that month, the D.C. Circuit issued the stay the government asked for, but in April, the full D.C. Circuit thwarted the firings.

Not long after the D.C. Circuit heard oral arguments in May, the Supreme Court's conservative majority weighed in on the shadow docket with a stay, ruling that the president "may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents." The high court pointed to Seila Law and stated the stay pending appeal "reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power."

Justice Elena Kagan raged in a dissent that the majority had ignored statutory protections for Wilcox and Harris against removal "except for good cause," as illustrated in Humphrey's Executor, the precedent at issue next week at the Supreme Court in the case over the firing of FTC Commissioner Rebecca Slaughter.

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"In valuing so highly — in an emergency posture — the President's ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey's itself the emergency," Kagan wrote.

As the D.C. Circuit decision came down roughly seven months later, U.S. Circuit Judge Florence Pan, the lone dissenter, tore into the conservative majority for greenlighting "excessive" executive firing power.

Former President Joe Biden twice appointed Pan to serve on federal courts, first the U.S. District Court for the District of Columbia and then the D.C. Circuit. On both occasions, Pan filled seats vacated by Ketanji Brown Jackson, the newest member of SCOTUS and the only justice Biden appointed.

"The key feature that defines a government entity's independence from political influence is its freedom from total control by the President. To safeguard that independence, Congress has limited the President's authority to remove the leaders of agencies that it has determined should be apolitical — and it has set such removal protections with the approval of Republican and Democratic Presidents alike," Pan wrote. "As relevant here, Congress has specifically provided that the President may remove the leaders of certain independent agencies only 'for cause,' such as the leaders' inefficiency, malfeasance, or neglect of duty."

"For at least ninety years," she added, "it has been settled law that Congress may impose statutory for-cause removal protections in the exercise of its authority to organize and structure the Executive Branch. But today, my colleagues make us the first court to strike down the independence of a traditional multimember expert agency[.]"

Asserting that the upshot of the majority's ruling is that "it appears that no independent agencies may lawfully exist in this country[,]" Pan said the logical endpoint of the Trump administration's arguments is an executive branch entirely subject to politicization and the whims of the president.

"In essence, the government asks the courts to hold that our Constitution requires all actions and decisions made by the Executive Branch to be political. Thus, instead of relying on subject-matter expertise to make merits-based decisions for the public good, previously independent agencies must advance the political agenda of the President," the dissent said. "Taken to its logical end, the government's theory will eliminate removal protections for all employees of the Executive Branch and place every hiring decision and agency action under the political direction of the President.

Pan said that the outcome is a "radical upending of the constitutional order" that invites "autocracy."

"But such a radical upending of the constitutional order is not supported by the text or structure of the Constitution and is inconsistent with the intent of the Framers," the dissent concluded. "And while the government claims to uphold the separation of powers, its theory instead concentrates excessive power in the President and thus paves the way to autocracy."

Read the full opinion here.