Cathy A. Harris, in Her Personal Capacity v. Scott Bessent, in His Official Capacity As Secretary of the Treasury

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2025 Decided December 5, 2025
No. 25-5037
CATHY A. HARRIS, IN HER PERSONAL CAPACITY AND IN HER
OFFICIAL CAPACITY AS MEMBER OF THE MERIT SYSTEMS
PROTECTION BOARD,
APPELLEE
v.
SCOTT BESSENT, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
THE TREASURY, ET AL.,
APPELLANTS
Consolidated with 25-5055
Appeals from the United States District Court
for the District of Columbia
(No. 1:25-cv-00412)
Harry Graver, Attorney, U.S. Department of Justice,
argued the cause for appellants. On the briefs were Eric D.
McArthur, Deputy Assistant Attorney General, and Mark R.
Freeman, Michael S. Raab, Joshua M. Salzman, Laura E.
Myron, and Daniel Aguilar, Attorneys.

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Martin Akerman, pro se, was on the brief for amicus curiae
Martin Akerman in support of appellants.
James Uthmeier, Attorney General, Office of the Attorney
General for the State of Florida, Jeffrey Paul Desousa, Acting
Solicitor General, and Nathan A. Forrester, Chief Deputy
Solicitor General, were on the brief for amici curiae State of
Florida, et al. in support of appellants.
Nathaniel A. Zelinsky argued the cause for appellee Cathy
A. Harris. With him on the brief were Michael J. Kator,
Jeremy D. Wright, Kerrie D. Riggs, Linda M. Correia, Neal
Kumar Katyal, Kristina Alekseyeva, and Ezra P. Louvis.
Steven A. Hirsch was on the brief for amici curiae Law
Professors John C. Coates, et al. in support of appellee.
Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle were on the brief for amicus curiae Constitutional
Accountability Center in support of appellee.
Nicolas A. Sansone and Allison M. Zieve were on the brief
for amicus curiae Public Citizen in support of appellee.
Anthony Schoenberg, Alexis Loeb, John Ugai, and Raven
Quesenberry were on the brief for amici curiae 253 Members
of Congress in support of appellee.
Elizabeth C. Lockwood and Kathryn M. Ali were on the
brief for amici curiae Former Board Members and General
Counsel of the Merit Systems Protection Board in support of
appellee.

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Anne E. Lopez, Attorney General, Office of the Attorney
General for the State of Hawaii, Kaliko’onalani D. Fernandes,
Solicitor General, Kristin K. Mayes, Attorney General, Office
of the Attorney General for the State of Arizona, Philip J.
Weiser, Attorney General, Office of the Attorney General for
the State of Colorado, Rob Bonta, Attorney General, Office of
the Attorney General for the State of California, William Tong,
Attorney General, Office of the Attorney General for the State
of Connecticut, Kathleen Jennings, Attorney General, Office
of the Attorney General for the State of Delaware, Aaron M.
Frey, Attorney General, Office of the Attorney General for the
State of Maine, Andrea Joy Campbell, Attorney General,
Office of the Attorney General for the Commonwealth of
Massachusetts, Keith Ellison, Attorney General, Office of the
Attorney General for the State of Minnesota, Matthew J.
Platkin, Attorney General, Office of the Attorney General for
the State of New Jersey, Letitia James, Attorney General,
Office of the Attorney General for the State of New York,
Kwame Raoul, Attorney General, Office of the Attorney
General for the State of Illinois, Anthony G. Brown, Attorney
General, Office of the Attorney General for the State of
Maryland, Dana Nessel, Attorney General, Office of the
Attorney General for the State of Michigan, Aaron D. Ford,
Attorney General, Office of the Attorney General for the State
of Nevada, Raul Torrez, Attorney General, Office of the
Attorney General for the State of New Mexico, Jeff Jackson,
Attorney General, Office of the Attorney General for the State
of North Carolina, Dan Rayfield, Attorney General, Office of
the Attorney General for the State of Oregon, Charity R. Clark,
Attorney General, Office of the Attorney General for the State
of Vermont, Joshua L. Kaul, Attorney General, Office of the
Attorney General for the State of Wisconsin, Peter F. Neronha,
Attorney General, Office of the Attorney General for the State
of Rhode Island, Nicholas W. Brown, Attorney General, Office
of the Attorney General for the State of Washington, and Brian

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L. Schwalb, Attorney General, Office of the Attorney General
for the District of Columbia, were on the brief for amici curiae
State of Hawaii, et al. in support of appellee.
William Pittard and Daniel Csigirinszkij were on the brief
for amicus curiae Professor Peter Conti-Brown in support of
appellee.
Joseph M. Sellers was on the brief for amici curiae Patrick
J. Borchers, et al. in support of appellee.
Thad M. Guyer was on the brief for amici curiae
Government Accountability Project, et al. in support of
appellee.
Joseph Carson, pro se, was on the brief for amicus curiae
Joseph Carson, PE in support of appellee.
No. 25-5057
GWYNNE A. WILCOX,
APPELLEE
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT
OF THE UNITED STATES AND MARVIN E. KAPLAN, IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF THE NATIONAL LABOR
RELATIONS BOARD,
APPELLANTS

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Appeal from the United States District Court
for the District of Columbia
(No. 1:25-cv-00334)
Harry Graver, Attorney, U.S. Department of Justice,
argued the cause for appellants. On the briefs were Eric D.
McArthur, Deputy Assistant Attorney General, and Mark R.
Freeman, Michael S. Raab, Joshua M. Salzman, Laura E.
Myron, and Daniel Aguilar, Attorneys.
Daniel Z. Epstein and R. Trent McCotter were on the brief
for amicus curiae Separation of Powers Clinic in support of
appellants.
Michael Pepson was on the brief for amicus curiae
Americans for Prosperity Foundation in support of appellants.
Jonathan Skrmetti, Attorney General and Reporter, Office
of the Attorney General for the State of Tennessee, and
Whitney Hermandorfer, Director of Strategic Litigation at the
time the brief was filed, were on the brief for amicus curiae
State of Tennessee in support of appellants.
Michael H. McGinley, Brian A. Kulp, Jordan L. Von
Bokern, and Steven A. Engel were on the brief for amicus
curiae the Chamber of Commerce of the United States of
America in support of appellants.
James Uthmeier, Attorney General, Office of the Attorney
General for the State of Florida, Jeffrey Paul Desousa, Acting
Solicitor General, and Nathan A. Forrester, Chief Deputy

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Solicitor General, were on the brief for amici curiae State of
Florida, et al. in support of appellants.
Kevin F. King, Matthew J. Glover, Eli Nachmany, and
Brad J. Grisenti were on the brief for amicus curiae Coalition
for a Democratic Workplace in support of appellants.
William J. Olson and Jeremiah L. Morgan were on the
brief for amicus curiae America’s Future, et al. in support of
appellants.
Deepak Gupta argued the cause for appellee Gwynne A.
Wilcox. With him on the brief were Jennifer D. Bennett,
Matthew W. H. Wessler, Gregory A. Beck, and Alisa C. Philo.
Dennis Fan was on the brief for amici curiae Former
Members of the National Labor Relations Board in support of
appellee.
Steven A. Hirsch was on the brief for amici curiae Law
Professors John C. Coates, et al. in support of appellee.
Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle were on the brief for amicus curiae Constitutional
Accountability Center in support of appellee.
Nicolas A. Sansone and Allison M. Zieve were on the brief
for amicus curiae Public Citizen in support of appellee.
Anthony Schoenberg, Alexis Loeb, John Ugai, and Raven
Quesenberry were on the brief for amici curiae 253 Members
of Congress in support of appellee.
Keith Ellison, Attorney General, Office of the Attorney
General for the State of Minnesota, Liz Kramer, Solicitor

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General, Kwame Raoul, Attorney General, Office of the
Attorney General for the State of Illinois, Jane Elinor Notz,
Solicitor General, Alex Hemmer, Deputy Solicitor General,
Kris Mayes, Attorney General, Office of the Attorney General
for the State of Arizona, Philip J. Weiser, Attorney General,
Office of the Attorney General for the State of Colorado,
Kathleen Jennings, Attorney General, Office of the Attorney
General for the State of Delaware, Rob Bonta, Attorney
General, Office of the Attorney General for the State of
California, William Tong, Attorney General, Office of the
Attorney General for the State of Connecticut, Brian L.
Schwalb, Attorney General, Office of the Attorney General for
the District of Columbia, Anne E. Lopez, Attorney General,
Office of the Attorney General for the State of Hawaii, Anthony
G. Brown, Attorney General, Office of the Attorney General
for the State of Maryland, Dana Nessel, Attorney General,
Office of the Attorney General for the State of Michigan,
Matthew J. Platkin, Attorney General, Office of the Attorney
General for the State of New Jersey, Letitia James, Attorney
General, Office of the Attorney General for the State of New
York, Dan Rayfield, Attorney General, Office of the Attorney
General for the State of Oregon, Aaron M. Frey, Attorney
General, Office of the Attorney General for the State of Maine,
Andrea Joy Campbell, Attorney General, Office of the
Attorney General for the Commonwealth of Massachusetts,
Aaron D. Ford, Attorney General, Office of the Attorney
General for the State of Nevada, Raul Torrez, Attorney
General, Office of the Attorney General for the State of New
Mexico, Jeff Jackson, Attorney General, Office of the Attorney
General for the State of North Carolina, Peter F. Neronha,
Attorney General, Office of the Attorney General for the State
of Rhode Island, Charity R. Clark, Attorney General, Office of
the Attorney General for the State of Vermont, Joshua L. Kaul,
Attorney General, Office of the Attorney General for the State
of Wisconsin, and Nicholas W. Brown, Attorney General,

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Office of the Attorney General for the State of Washington,
were on the brief for amici curiae State of Minnesota, et al. in
support of appellee.
Matthew Ginsburg, Harold Craig Becker, and Maneesh
Sharma were on the brief for amicus curiae the American
Federation of Labor and Congress of Industrial Organizations
(AFL-CIO) in support of appellee.
William Pittard and Daniel Csigirinszkij were on the brief
for amicus curiae Professor Peter Conti-Brown in support of
appellee.
Joseph M. Sellers was on the brief for amici curiae Patrick
J. Borchers, et al. in support of appellee.
Richard F. Griffin and Faaris Akremi were on the brief for
amicus curiae Professor Jed H. Shugerman in support of
appellee.
Before: KATSAS, WALKER, and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
Dissenting opinion filed by Circuit Judge PAN.
KATSAS, Circuit Judge: These appeals present the
question whether Congress may constitutionally prohibit the
President from removing members of the National Labor
Relations Board and Merit Systems Protection Board without
cause. The district courts upheld the constitutionality of
statutory removal protections for members of these boards.
We reverse. Under Humphrey’s Executor v. United States,
295 U.S. 602 (1935), Congress may restrict the President’s
ability to remove principal officers who wield only quasi-

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legislative or quasi-judicial powers. But under Seila Law LLC
v. Consumer Financial Protection Bureau, 591 U.S. 197
(2020), Congress may not restrict the President’s ability to
remove principal officers who wield substantial executive
power. As explained below, the NLRB and MSPB wield
substantial powers that are both executive in nature and
different from the powers that Humphrey’s Executor deemed
to be merely quasi-legislative or quasi-judicial. So, Congress
cannot restrict the President’s ability to remove NLRB or
MSPB members.
I
The National Labor Relations Board and Merit Systems
Protection Board are multimember agencies with wide-ranging
statutory responsibilities and with members protected by
statute from presidential removal without cause.
A
The National Labor Relations Act constitutes the NLRB
as an agency of five members appointed by the President with
the advice and consent of the Senate. 29 U.S.C. § 153(a). The
members serve five-year terms. Id. The NLRA purports to
prohibit the President from removing a member except “for
neglect of duty or malfeasance in office.” Id.
Congress empowered the NLRB to prevent any “unfair
labor practice” affecting interstate commerce. 29 U.S.C.
§ 160(a). The NLRB conducts formal adjudications to resolve
unfair-labor-practice complaints presented to it. Id. § 160(b).
If it finds an unfair labor practice, the NLRB must issue a
cease-and-desist order. Id. § 160(c). It also may order
affirmative relief, including reinstatement and backpay, to
“effectuate the policies” of the NLRA. Id. Acting under these
remedial authorities, the NLRB has claimed the power to award

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compensatory and consequential-like damages. See Thryv,
Inc., 372 NLRB No. 22, at *9–10 (Dec. 13, 2022), vacated in
part on other grounds, 102 F.4th 727 (5th Cir. 2024). But see
NLRB v. Starbucks Corp., 125 F.4th 78, 96–97 (3d Cir. 2024)
(concluding such relief is ultra vires). In some instances, the
NLRB may find speech to constitute an unfair labor practice.
See 29 U.S.C. § 158(a)(1); Cadillac of Naperville, Inc. v.
NLRB, 14 F.4th 703, 721–22 (D.C. Cir. 2021) (Katsas, J.,
concurring in part and dissenting in part). In others, it may
compose and order company speech as a remedy for unfair
labor practices. See HTH Corp. v. NLRB, 823 F.3d 668, 675–
78 (D.C. Cir. 2016).
The NLRB may litigate in federal court to prevent unfair
labor practices. Upon the filing of an administrative complaint,
it may seek interim injunctive relief in district court. 29 U.S.C.
§ 160(j). And upon finding an unfair labor practice, the NLRB
may petition an appropriate court of appeals to enforce its
order. Id. § 160(e). In conducting this litigation, the NLRB
acts through its own counsel, rather than that of the Justice
Department. Id. § 154(a).
Beyond its powers to prevent unfair labor practices, the
NLRB has substantial authority over matters involving union
elections. Within or across employers, it must determine the
“unit appropriate” for collective bargaining. 29 U.S.C.
§ 159(b). For such units, the NLRB also supervises elections
to certify or decertify unions as the employees’ bargaining
representatives. See id. § 159(c)–(e).
Lastly, the NLRB may “from time to time … make,
amend, and rescind … such rules and regulations as may be

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necessary to carry out the provisions of” the NLRA, including
the provisions outlined above. 29 U.S.C. § 156.1
B
The Civil Service Reform Act constitutes the MSPB as an
agency of three members appointed by the President with the
advice and consent of the Senate. 5 U.S.C. § 1201. The
members serve seven-year terms. Id. § 1202(a). The CSRA
purports to prohibit the President from removing a member
except for “inefficiency, neglect of duty, or malfeasance in
office.” Id. § 1202(d).
The MSPB primarily manages disputes between federal
employees and their employing agencies. Among other things,
the MSPB may adjudicate all matters within its jurisdiction and
may “take final action on any such matter.” 5 U.S.C.
§ 1204(a)(1). It may “order any Federal agency or employee
to comply with any” of its orders or decisions, and it may
“enforce compliance” with them. Id. § 1204(a)(2). To do so,
it may “order that any employee charged with complying with
such [an] order,” except for Senate-confirmed presidential
appointees, “shall not be entitled to receive payment for service
as an employee during any period that the order has not been
complied with.” Id. § 1204(e)(2)(A).
1 Separate from the NLRB, Congress has created its office of
General Counsel. That officer is appointed by the President, with the
advice and consent of the Senate, to a four-year term. 29 U.S.C.
§ 153(d). Unlike NLRB members, the General Counsel has no
statutory removal protection. He has “final authority” to investigate,
charge, and prosecute unfair-labor-practice complaints before the
NLRB. Id. He also supervises the NLRB’s regional offices, and the
Board may delegate additional powers to him. Id.

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The MSPB’s jurisdiction covers a wide range of federal
employment disputes. The MSPB often reviews actions
already taken by the employing agency. For example, federal
employees may “appeal” to the MSPB disciplinary actions
taken by an employer to promote “efficiency of the [civil]
service.” 5 U.S.C. § 7513(a), (d). Employees also may seek
“corrective action” from the MSPB for any “prohibited
personnel practice.” Id. § 1221(a). Such practices include acts
of discrimination made unlawful by four different statutes,
granting unauthorized preferences, coercing political activity,
retaliation for various protected activities, improper influence,
deception, and obstruction. Id. § 2302(b). The MSPB also has
jurisdiction to review employment actions alleged to violate
statutory protections for military servicemembers or veterans.
See id. §§ 1204(a)(1), 3330a(d)(1); 38 U.S.C. § 4324.
Sometimes, the MSPB resolves disputes in the first
instance. Many such disputes involve claims presented to it by
the Office of the Special Counsel. In these cases, the MSPB
may order corrective action for prohibited personnel practices,
5 U.S.C. § 1214, or for violations of other statutes enforced by
the Special Counsel, id. § 1216. The MSPB also may impose
discipline for any of these violations. Id. § 1215(a)(3). Finally,
the MSPB resolves employment disputes involving
Administrative Law Judges, who cannot be removed,
suspended, or demoted without “good cause” as found by the
MSPB. Id. § 7521.
In its various adjudications, the MSPB may award a wide
range of interim and final relief. Upon request by the Special
Counsel, any MSPB member may “order a stay of any
personnel action” reasonably believed to constitute a
prohibited personnel practice. 5 U.S.C. § 1214(b)(1)(A). Such
stays may last for up to 45 days initially, and the MSPB may
extend them for “any period” it considers appropriate. Id.

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§ 1214(b)(1)(B)(i). To remedy unwarranted discipline
imposed by an employing agency, the MSPB may order
affirmative relief including reinstatement and backpay. See
Elgin v. Dep’t of Treasury, 567 U.S. 1, 6 (2012). For prohibited
personnel practices, it may order “corrective action” that
includes reinstatement, backpay, and compensatory damages.
Id. §§ 1214(g), 1221(g)(1). In cases where it imposes
discipline, the MSPB may order removal, demotion, debarment
from federal employment for up to five years, and penalties of
up to $1,000, or “any combination” of these sanctions. Id.
§ 1215(a)(3)(A).
The MSPB has its own litigating authority. Except in the
Supreme Court, its attorneys “may appear for the Board, and
represent the Board, in any civil action brought in connection
with any function carried out by the Board.” 5 U.S.C.
§ 1204(i). When aggrieved employees seek judicial review of
its decisions, the MSPB (rather than the employing agency or
official) is sometimes the respondent. See id. § 7703(a)(2).
Specifically, it is the respondent when the employee challenges
an adverse procedural ruling, Spruill v. MSPB, 978 F.2d 679,
684 (Fed. Cir. 1992), or when the MSPB adjudicates a dispute
in the first instance, Costello v. MSPB, 182 F.3d 1372, 1381
(Fed. Cir. 1999).
The MSPB has three overlapping grants of rulemaking
authority. It may promulgate “such regulations as may be
necessary for the performance of its functions.” 5 U.S.C.
§ 1204(h). It may promulgate “regulations to carry out the
purpose” of conducting administrative appeals. Id. § 7701(k).
And it may promulgate regulations “for the purpose of section
7521,” which governs adverse employment actions against
ALJs. Id. § 1305. The MSPB also may sua sponte review
regulations promulgated by the Office of Personnel
Management. Id. § 1204(f)(1). It may declare such regulations

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invalid, on their face or as implemented, to the extent they
purport to require prohibited personnel practices. Id.
§ 1204(f)(2). And it may “require any agency” to “cease
compliance” with such regulations. Id. § 1204(f)(4)(A).
II
The President removed Gwynne Wilcox from the NLRB
and Cathy Harris from the MSPB. In defense of those actions,
the government does not contend that Wilcox or Harris
engaged in any conduct that would support for-cause removal
under the relevant statutory restrictions. Instead, it argues that
the restrictions are unconstitutional.
Wilcox and Harris sued to challenge their removals. The
district courts held that the statutory removal protections are
constitutional under Humphrey’s Executor; they declared that
Wilcox and Harris continue to hold their respective offices; and
they enjoined the government from interfering with the
individuals’ ability to function as board members. Wilcox v.
Trump, 775 F. Supp. 3d 215 (D.D.C. 2025); Harris v. Bessent,
775 F. Supp. 3d 164 (D.D.C. 2025). The government appealed
and sought interim stays pending appeal. A motions panel of
this Court granted the stays, Harris v. Bessent, No. 25-5037,
2025 WL 980278 (D.C. Cir. Mar. 28, 2025), but the full Court
vacated that decision, Harris v. Bessent, No. 25-5037, 2025
WL 1021435 (D.C. Cir. Apr. 7, 2025) (en banc) (per curiam).
The Supreme Court then stayed the district courts’ orders
pending the resolution of these appeals and any ensuing
petitions for certiorari. Trump v. Wilcox, 145 S. Ct. 1415
(2025) (per curiam). In doing so, the Court found it likely “that
both the NLRB and MSPB exercise considerable executive
power,” which it said would make the removal restrictions
unconstitutional. Id. at 1415.

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III
A
Article II of the Constitution vests “[t]he executive Power”
of the United States “in a President,” U.S. Const., Art. II, § 1,
cl. 1, and requires him to “take Care that the Laws be faithfully
executed,” id. § 3. In Myers v. United States, 272 U.S. 52
(1926), the Supreme Court held that the Vesting and Take Care
Clauses prevent Congress from restricting the President’s
ability to remove government officers who wield significant
executive power on his behalf. See id. at 117–18, 163–64. The
Court invalidated a statute requiring the Senate to provide
advice and consent to effectuate the President’s removal of a
first-class postmaster. See id. at 107, 176. In later cases, the
Court applied Myers to invalidate statutory restrictions on the
President’s ability to remove various principal officers. See
Collins v. Yellen, 594 U.S. 220 (2021) (Director of Federal
Housing Finance Agency); Seila Law, 591 U.S. 197 (Director
of CFPB); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd.,
561 U.S. 477 (2010) (members of PCAOB). More recently,
the Court noted that because the President’s “exclusive power
of removal in executive agencies” is “conclusive and
preclusive,” Congress may not restrict it. Trump v. United
States, 603 U.S. 593, 609 (2024) (quoting Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 638 & n.4 (1952) (Jackson,
J., concurring)).
A different line of precedent qualifies these cases. In
Humphrey’s Executor, the Supreme Court upheld the
constitutionality of a statute barring the President from
removing members of the Federal Trade Commission absent
“inefficiency, neglect of duty, or malfeasance in office.”
15 U.S.C. § 41. The Court acknowledged Myers’s holding that
Congress cannot restrict the President’s ability to remove

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“purely executive officers.” Humphrey’s Ex’r, 295 U.S. at
627–28. But it concluded that Myers does not govern the
removal of an officer “who exercises no part of the executive
power vested by the Constitution in the President.” Id. at 628.
And it characterized the FTC’s powers not as executive, but as
“quasi-legislative or quasi-judicial.” Id. In Wiener v. United
States, 357 U.S. 349 (1958), the Court applied Humphrey’s
Executor to infer and uphold a cause requirement for removing
members of the War Claims Commission, a tribunal that
adjudicated claims under a statutory scheme for compensating
certain Americans held by the Axis powers during World War
II. Id. at 349–50, 355–56. Other precedents have upheld cause
requirements for the removal of certain inferior officers.
Morrison v. Olson, 487 U.S. 654 (1988); United States v.
Perkins, 116 U.S. 483 (1886).
In Seila Law, the Court read Humphrey’s Executor
narrowly and expressly declined to extend it. According to the
Court, “text, first principles, the First Congress’s decision in
1789 [regarding removal of executive officers], Myers, and
Free Enterprise Fund all establish that the President’s removal
power is the rule, not the exception.” 591 U.S. at 228.
Moreover, Humphrey’s Executor and Morrison reflect “two
exceptions—one for multimember expert agencies that do not
wield substantial executive power, and one for inferior officers
with limited duties and no policymaking or administrative
authority.” Id. at 218. Furthermore, these exceptions
“represent what up to now have been the outermost
constitutional limits of permissible congressional restrictions
on the President’s removal power.” Id. (quoting PHH Corp. v.
CFPB, 881 F.3d 75, 196 (D.C. Cir. 2018) (en banc)
(Kavanaugh, J., dissenting)). As it had done previously, the
Court declined to “extend” Humphrey’s Executor to a “new
situation.” Id. at 220 (quoting Free Enter. Fund, 561 U.S. at
483).

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Seila Law held that the Myers rule—not the Humphrey’s
Executor exception—governs removal of the CFPB Director.
To distinguish Humphrey’s Executor, the Court identified three
significant executive powers vested in the CFPB. First, the
CFPB can “promulgate binding rules” implementing the
statutes that it administers. 591 U.S. at 218. Second, it can
“issue final decisions awarding legal and equitable relief in
administrative adjudications.” Id. at 219. Third, it can “seek
daunting monetary penalties against private parties on behalf
of the United States in federal court—a quintessentially
executive power not considered in Humphrey’s Executor.” Id.
B
These appeals turn on whether Humphrey’s Executor
applies to the NLRB and MSPB. At first glance, that question
seems to turn on whether these agencies exercise any
significant executive power within the meaning of the Vesting
Clause, which would bring this case within the rule of Myers
and Seila Law; or whether the agencies exercise only quasi-
legislative and quasi-judicial powers, which Humphrey’s
Executor deemed to fall outside the President’s executive
power under Article II. See 295 U.S. at 627–28. But after
Humphrey’s Executor was decided, two related developments
in separation-of-powers jurisprudence made it all but
impossible to distinguish executive power from quasi-
legislative or quasi-judicial power.
First, the Supreme Court has broadened its understanding
of what powers count as executive. In Buckley v. Valeo, 424
U.S. 1 (1976) (per curiam), the Court held that the Federal
Election Commission’s “enforcement power, exemplified by
its discretionary power to seek judicial relief,” is an executive
power entrusted to the President through the Take Care Clause.
See id. at 138. In Bowsher v. Synar, 478 U.S. 714 (1986), the

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Court held that the power to interpret and apply a statute
requiring certain budget cuts is executive. See id. at 733
(“Interpreting a law enacted by Congress to implement the
legislative mandate is the very essence of ‘execution’ of the
law.”). In Freytag v. Commissioner, 501 U.S. 868 (1991),
Justice Scalia explained at length that “there is nothing
‘inherently judicial’ about ‘adjudication,’” which Article II
agencies perform routinely. Id. at 909 (concurring in part and
concurring in the judgment); see id. at 909–12. And in City of
Arlington v. FCC, 569 U.S. 290 (2013), the Court explained
that rulemaking and administrative adjudication “take
‘legislative’ and ‘judicial’ forms, but they are exercises of—
indeed, under our constitutional structure they must be
exercises of—the ‘executive Power.’” Id. at 304 n.4 (quoting
Article II Vesting Clause). With enforcement, rulemaking, and
administrative adjudication all classed as executive powers,
what is left of the assertedly discrete categories of quasi-
legislative or quasi-judicial powers? In sum, “[t]he Court’s
conclusion [in Humphrey’s Executor] that the FTC did not
exercise executive power has not withstood the test of time.”
Seila Law, 591 U.S. at 216 n.2 (citing City of Arlington, 569
U.S. at 304 n.4). To the contrary, it is “hard to dispute that the
powers of the FTC at the time of Humphrey’s Executor would
at the present time be considered ‘executive,’ at least to some
degree.” Id. (quoting Morrison, 487 U.S. at 690 n.28).
Second, the Supreme Court increasingly has stressed that
there are only three kinds of constitutional powers, and two of
them are not delegable. “Our Constitution divided the ‘powers
of the new Federal Government into three defined categories,
Legislative, Executive, and Judicial.’” Free Enter. Fund, 561
U.S. at 483 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
Only Congress itself may exercise the legislative power. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001)
(Article I “permits no delegation”). And only life-tenured

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judges may exercise the “judicial Power of the United States.”
Stern v. Marshall, 564 U.S. 462, 483–84 (2011) (quoting U.S.
Const. Art. III, § 1); see also Mistretta v. United States, 488
U.S. 361, 425 (1989) (Scalia, J., dissenting) (“A judge may not
leave the decision to his law clerk, or to a master.”). So by
process of elimination, if agencies may receive neither
legislative nor judicial powers, what is left for them other than
some portion of the executive power?
These considerations suggest that very little remains of
Humphrey’s Executor. Perhaps its most plausible application
is to purely adjudicatory bodies like the War Claims
Commission at issue in Wiener. But under today’s separation-
of-powers jurisprudence, even those bodies exercise the
President’s executive power. See, e.g., United States v.
Arthrex, Inc., 594 U.S. 1, 17 (2021) (Administrative Patent
Judges); Kuretski v. Comm’r, 755 F.3d 929, 932 (D.C. Cir.
2014) (Tax Court judges). Recall that Seila Law limited
Humphrey’s Executor to entities that “do not wield substantial
executive power.” 591 U.S. at 218. So maybe agencies with
any “substantial” power—quasi-judicial, quasi-legislative, or
otherwise—fall outside Humphrey’s Executor because that
power is and must be executive. See Consumers’ Rsch. v.
CPSC, 98 F.4th 646, 650–57 (5th Cir. 2024) (Oldham, J.,
dissenting from denial of rehearing en banc). Maybe
Humphrey’s Executor thus governs only agencies with purely
advisory functions—like, say, the United States Commission
on Civil Rights, see Dellinger v. Bessent, No. 25-5028, 2025
WL 559669, at *14 (D.C. Cir. Feb. 15, 2025) (Katsas, J.,
dissenting). And maybe the Supreme Court, which is now
considering whether to overrule Humphrey’s Executor, will
soon hold as much. See Stay Order, Trump v. Slaughter, No.
25-332 (U.S. Sept. 22, 2025).

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All of that said, we are reluctant to decide these appeals
along those lines. Of course, we must apply Humphrey’s
Executor as best we can, unless and until the Supreme Court
overrules it. See Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989). Moreover, despite
rejecting the reasoning of Humphrey’s Executor, the Supreme
Court has twice expressly declined to overrule it. See Seila
Law, 591 U.S. at 228; Free Enter. Fund, 561 U.S. at 483. And
Seila Law acknowledged that Humphrey’s Executor had
upheld removal restrictions for an agency with powers that
“would at the present time be considered executive.” 591 U.S.
at 216 n.2 (quoting Morrison, 487 U.S. at 690 n.28). Given
these considerations, maybe Congress still may restrict
removal if the board at issue has only those powers that
Humphrey’s Executor deemed to be quasi-legislative or quasi-
judicial, even if those powers are now recognized as executive.
Fortunately, we need not resolve all these tensions. As we
explain below, the NLRB and MSPB exercise significant
executive powers, which is enough to trigger the general rule
of Myers and Seila Law. Moreover, many of those powers
exceed ones that Humphrey’s Executor deemed to be quasi-
legislative or quasi-judicial, which makes this case fall outside
any exception based on that decision.
C
So what powers did Humphrey’s Executor deem to be
quasi-legislative or quasi-judicial? That case involved powers
vested in the FTC by the Federal Trade Commission Act as
originally enacted in 1914. Section 5 of that Act prohibited
“unfair methods of competition in commerce.” Act of Sept. 26,
1914, ch. 311, § 5, 38 Stat. 717, 719–20 (codified as amended
at 15 U.S.C. § 45). It authorized the Commission to adjudicate
complaints alleging unfair methods of competition, to issue

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cease-and-desist orders, and to seek judicial enforcement of
those orders. Id. Section 6 of the Act authorized the
Commission to make and file reports with other governmental
entities, including Congress. Id. at 721–22 (codified as
amended at 15 U.S.C. § 46). Section 7 authorized the
Commission to act “as a master in chancery” in pending
antitrust actions. Id. at 722 (codified at 15 U.S.C. § 47). For
our purposes, “what matters is the set of powers the Court
considered as the basis for its decision” in Humphrey’s
Executor. Seila Law, 591 U.S. at 219 n.4.
1
In distinguishing Myers, the Court deemed only one of the
FTC’s powers to be quasi-legislative: making reports for
Congress. See Humphrey’s Ex’r, 295 U.S. at 628 (“In making
investigations and reports … for the information of Congress
under section 6, in aid of the legislative power, it acts as a
legislative agency.”). That power is “investigative and
informative”—one that “Congress might delegate to one of its
own committees.” Buckley, 424 U.S. at 137.
More interesting is a power that Humphrey’s Executor did
not describe as quasi-legislative. Section 6(g) of the FTC Act
authorized the Commission “to make rules and regulations for
the purpose of carrying out the provisions of this Act.” 38 Stat.
at 722. Yet Humphrey’s Executor did not mention that
provision, much less characterize it as conferring on the FTC
the quasi-legislative power to engage in substantive
rulemaking. This was hardly surprising because “the agency
itself did not assert the power to promulgate substantive rules
until 1962 and indeed indicated intermittently that it lacked
such a power.” Nat’l Petrol. Refiners Ass’n v. FTC, 482 F.2d
672, 693 (D.C. Cir. 1973). Before Humphrey’s Executor was
decided, the Commission had expressly disclaimed the power

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to promulgate substantive rules governing primary conduct, as
opposed to procedural rules governing the conduct of
administrative adjudication under section 5. See id. at 693
n.27; Annual Report of the Federal Trade Commission for the
Fiscal Year Ended June 30, 1922 at 36 (“One of the most
common mistakes is to suppose that the commission can
issue … regulations unconnected with any proceeding before
it.”). For this reason, the Supreme Court cited the CFPB’s
power “to promulgate binding [substantive] rules” as one
important power not considered in Humphrey’s Executor—and
one key reason why Humphrey’s Executor does not apply to
the CFPB. Seila Law, 591 U.S. at 218.
2
Humphrey’s Executor conceived of “quasi-judicial”
power as assisting the Article III courts or, at most, engaging
in a restrained species of administrative adjudication modeled
on how Article III judges resolve cases or controversies.
In distinguishing Myers, the Supreme Court expressly
described only one of the FTC’s powers as “quasi-judicial”—
its section 7 power to assist the courts. See 295 U.S. at 628.
That provision allowed a federal district court, if it found that
equitable remedies were warranted in an antitrust case, to
“refer” the case “to the commission, as a master in chancery, to
ascertain and report an appropriate form of decree.” 38 Stat. at
722. In that instance, the Commission would prepare and file
a report, which the court could “adopt or reject” as it chose. Id.
As Humphrey’s Executor perceived it, “quasi-judicial” power
is thus merely the power to “act[] as an agency of the
judiciary.” 295 U.S. at 628. Today, we might liken this power
to that of a magistrate judge or a special master. See 28 U.S.C.
§ 636 (magistrate judges); Fed. R. Civ. P. 53 (special masters).

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More generally, the Supreme Court also referenced the
FTC’s power to conduct administrative adjudications under
section 5, which it described as “filling in and administering
the details” regarding a “general” statutory prohibition of
unfair methods of competition. See 295 U.S. at 628.
According to the Court, that enterprise emphatically did not
involve any discretionary policy judgments. Instead, the FTC
was a “nonpartisan” body required to “act with entire
impartiality.” Id. at 624. And it was “charged with the
enforcement of no policy except the policy of the law.” Id. In
Wiener, the Court similarly described administrative
adjudication by the War Claims Commission: Claims before it
“were to be ‘adjudicated according to law,’ that is, on the merits
of each claim, supported by evidence and governing legal
considerations.” 357 U.S. at 355. These descriptions resemble
Justice Scalia’s minimalist account of adjudication in
Freytag—agencies or courts “determine facts, apply a rule of
law to those facts, and thus arrive at a decision.” 501 U.S. at
909 (concurring in part and concurring in the judgment). These
descriptions also conjure up an enduring image of how judges
are supposed to adjudicate, as umpires fairly applying set rules
to call balls and strikes.
Precedents contemporaneous with Humphrey’s Executor
confirm this restrained conception of FTC administrative
adjudication. For one thing, the Supreme Court repeatedly had
held that the meaning of “unfair methods of competition,”
although open-ended, was “for the courts, not the commission,
ultimately to determine as [a] matter of law.” FTC v. Gratz,
253 U.S. 421, 427 (1920); see FTC v. Curtis Pub. Co., 260 U.S.
568, 579–80 (1923) (following Gratz). Moreover, courts
discerned the meaning of that phrase not through broad or
policy-laden pronouncements, but by “the gradual process of
judicial inclusion and exclusion,” consistent with traditional
common-law adjudication. FTC v. Raladam Co., 283 U.S. 643,

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648 (1931) (cleaned up). Some of these precedents eventually
were disapproved. See FTC v. Brown Shoe Co., 384 U.S. 316,
320–21 (1966) (disapproving Gratz). But in 1935, insofar as
FTC administrative adjudication was deemed a quasi-judicial
power, it was at most the power to resolve disputes like judges.
* * * *
In sum, Humphrey’s Executor laid down specific
conceptions of what counts as “quasi-legislative” or “quasi-
judicial” power. The former includes only legislative research
functions such as investigating, writing reports, and making
recommendations to Congress. The latter includes only the
power to serve as a trial master or to act as a judge-like
adjudicator without policymaking authority. As Seila Law
noted, neither category encompasses the powers to promulgate
substantive rules or to impose civil fines. See 591 U.S. at 218–
19. And although Humphrey’s Executor did not separately
analyze available remedies, Seila Law stressed that the FTC in
1935 could only assist courts or enter cease-and-desist orders,
as opposed to awarding damages or affirmative equitable relief.
See id.
IV
The powers of the NLRB and MSPB substantially exceed
the circumscribed administrative powers that Humphrey’s
Executor deemed to be quasi-legislative or quasi-judicial.
A
Congress has vested the NLRB with several executive
powers beyond the ones addressed in Humphrey’s Executor.
First, the NLRB possesses “broad rulemaking authority.”
Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 613 (1991). Section 6

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of the NLRA empowers the agency to promulgate “such rules
and regulations as may be necessary to carry out the
provisions” of the statute. 29 U.S.C. § 156. In American
Hospital Association, the Supreme Court held that this
authority covers not only rules establishing unfair labor
practices under section 8, but also “industry-wide rule[s]
delineating … appropriate bargaining units” under section 9.
499 U.S. at 611. Invoking that power, the NLRB has
promulgated rules governing collective bargaining in the health
care industry. 29 C.F.R. § 103.30. As Seila Law made clear,
the power to “promulgate binding rules fleshing out” major
federal statutes exceeds the powers that Humphrey’s Executor
deemed to be quasi-legislative or quasi-judicial. See 591 U.S.
at 218. Needless to say, it is also a quintessential executive
power under current constitutional standards.
Wilcox objects that the NLRB has not often engaged in
substantive rulemaking. See 29 C.F.R. §§ 103.1–3; Nat’l Ass’n
of Mfrs. v. NLRB, 717 F.3d 947, 949 (D.C. Cir. 2013). But that
is irrelevant to our inquiry. When evaluating the
constitutionality of removal restrictions, courts consider the
“authority” that an agency “possesses,” not the rigor with
which the power is exercised. Seila Law, 591 U.S. at 218. So,
“an agency’s voluntary self-denial” of its rulemaking power
“has no bearing” on our constitutional analysis. Am. Trucking
Ass’ns, 531 U.S. at 473.
Second, the NLRB conducts administrative adjudications
that are nothing like the model of adjudication that Humphrey’s
Executor treated as quasi-judicial. Recall that model: A
“nonpartisan” body of experts acts “with entire impartiality” to
undertake “the enforcement of no policy except the policy of
the law.” Humphrey’s Ex’r, 295 U.S. at 624. And courts
decide what the governing statutory standard means, through a
neutral process of case-by-case adjudication. See Raladam,

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283 U.S. at 648; Gratz, 253 U.S. at 427. In other words, courts
would decide what constitutes an “unfair method of
competition” or an “unfair labor practice,” using familiar
interpretive tools such as statutory text, structure, canons,
history, and precedent. This fairly describes the functioning of
purely adjudicatory bodies like the War Claims Commission,
which was charged with nothing more than adjudicating claims
“according to law.” 357 U.S. at 355. But it does not fairly
describe adjudication conducted by agencies with substantive
rulemaking power, which the Administrative Procedure Act
defines as including the power to “prescribe law or policy.”
See 5 U.S.C. § 551(4)–(5). For those agencies, the Supreme
Court has held that “adjudication is a generally permissible
mode of law-making and policymaking,” precisely because the
agency has been “delegated the power to make law and policy
through rulemaking.” Martin v. OSHRC, 499 U.S. 144, 154
(1991); see SEC v. Chenery Corp., 332 U.S. 194, 202–03
(1947) (Chenery II).
The NLRB conducts the latter kind of adjudications. It is
tasked with “developing and applying national labor policy.”
NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990).
So, it may “announc[e] new principles in an adjudicative
proceeding.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 294
(1974); see Consol. Freightways v. NLRB, 892 F.2d 1052, 1056
(D.C. Cir. 1989) (NLRB adjudication “enunciated a new rule,”
which “the Board has the authority to do”). The NLRB does
this routinely, see, e.g., NLRB v. J. Weingarten, Inc., 420 U.S.
251, 260–67 (1975); NLRB v. Burns Int’l Sec. Servs., Inc., 406
U.S. 272, 284–85 (1972), creating a bevy of requirements that
are akin to “statutory” rules or “one[s] established by
regulation,” Republic Aviation Corp. v. NLRB, 324 U.S. 793,
804–05 (1945).

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Moreover, policy considerations drive NLRB
adjudications. The Supreme Court has contrasted the “narrow
confines of law” for the courts with the “spacious domain of
policy” for the NLRB. Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941). Likewise, this Court has held that the NLRB
may “explicate why national labor policy requires” a given
rule. Retail Clerks Int’l Ass’n Loc. No. 455 v. NLRB, 510 F.2d
802, 807 (D.C. Cir. 1975). The NLRB routinely invokes
“policy” considerations not only to create rules by
adjudication, but also to overrule them. In re Lamons Gasket
Co., 357 NLRB 739, 739 (2011); In re IBM Corp., 341 NLRB
1288, 1290 (2004); see Valley Hosp. Med. Ctr., Inc. v. NLRB,
100 F.4th 994, 1003 (9th Cir. 2024) (O’Scannlain, J., specially
concurring) (NLRB “frequently changes its mind, seesawing
back and forth between statutory interpretations depending on
its political composition, leaving workers, employers, and
unions in the lurch”). On one recent occasion, the NLRB
overruled itself for the fifth time, and this Court, barely
mentioning any statutory provisions, upheld the agency’s latest
position as reasonably explained and thus not arbitrary. See
Hosp. Menonita de Guayama, Inc. v. NLRB, 94 F.4th 1, 16
(D.C. Cir. 2024) (Katsas, J., concurring), GVR, 145 S. Ct. 982
(2024). Perhaps the NLRA will be somewhat more
constraining now that Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024), has overruled Chevron U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837 (1984). But
it would blink reality to suppose that Loper Bright will
eliminate the NLRB’s ability to conduct policymaking through
adjudication under Chenery II. Whatever the virtues of that
modern species of administrative adjudication, it cannot fairly
be described as approximating how Article III judges decide
cases, or as resting on “no policy except the policy of the law.”
Humphrey’s Ex’r, 295 U.S. at 624. And it plainly involves the
exercise of substantial executive power. See City of Arlington,
569 U.S. at 304 n.4.

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Third, the NLRB may award substantially broader
remedies than the FTC could in 1935. At that time, the FTC,
upon finding an unfair method of competition, could issue only
a cease-and-desist order. See Humphrey’s Ex’r, 295 U.S. at
620–21. Such orders impose only a “negative restriction.”
Alberty v. FTC, 182 F.2d 36, 39 (D.C. Cir. 1950). The NLRB,
in contrast, may award various forms of affirmative relief.
Upon finding an unfair labor practice, it may issue not only a
cease-and-desist order, but also one “requiring” the offending
employer or union “to take such affirmative action including
reinstatement of employees with or without back pay, as will
effectuate the policies of” the NLRA. 29 U.S.C. § 160(c). This
may include the power to award compensatory damages. See
Thryv, Inc., 372 NLRB No. 22, at *9–10. And it sometimes
includes the power to compel employers to read NLRB-
composed admissions of liability, see Advancepierre Foods,
Inc. v. NLRB, 966 F.3d 813, 820–21 (D.C. Cir. 2020), a remedy
that Judge Williams likened to the practices of Joseph Stalin
and Mao Zedong, see HTH Corp., 823 F.3d at 677. Whatever
the merits of that comparison, the NLRB’s remedial authority
substantially exceeds that of the FTC in 1935. This
consideration also further distinguishes Humphrey’s Executor.
See Seila Law, 591 U.S. at 219.
Fourth, the NLRB has broader litigating authority than the
FTC did in 1935. Each agency may petition courts of appeals
to enforce final administrative orders. See 29 U.S.C. § 160(e)
(NLRB); 38 Stat. at 719–20 (codified as amended at 15 U.S.C.
§ 45) (FTC). But as noted above, NLRB remedial orders may
be much broader than those of the FTC in 1935. Moreover, the
NLRB has litigating authority to seek interim relief in district
courts. 29 U.S.C. § 160(j). In contrast, to obtain any judicial
relief besides enforcement of a final cease-and-desist order, the
FTC in 1935 would have needed to ask the Attorney General
to seek mandamus on its behalf. See 38 Stat. at 722 (codified

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as amended at 15 U.S.C. § 49); FTC v. Claire Furnace Co., 274
U.S. 160, 173–74 (1927); Space Expl. Techs. Corp. v. NLRB,
151 F.4th 761, 776 n.76 (5th Cir. 2025). The NLRB’s greater
authority to litigate on behalf of the United States both further
distinguishes Humphrey’s Executor, see Seila Law, 591 U.S. at
218–19, and reflects a greater degree of executive power, see
Buckley, 424 U.S. at 138–40; In re Aiken County, 725 F.3d 255,
264 n.9 (D.C. Cir. 2013) (opinion of Kavanaugh, J.) (“civil
enforcement decisions brought by the Federal Government are
presumptively an exclusive Executive power”).
Wilcox objects that NLRB litigation is conducted by its
General Counsel, an executive officer removable at-will by the
President. But while the General Counsel has “final authority”
to prosecute unfair-labor-practice complaints before the
NLRB, 29 U.S.C. § 153(d); see NLRB v. United Food & Com.
Workers Union, Loc. 23, 484 U.S. 112, 118–19 (1987), the
NLRA gives the Board itself control over litigation in court, 29
U.S.C. § 160(e), (j). The General Counsel conducts that
litigation pursuant to a delegation from the Board under section
3(d), which permits the NLRB to assign to the General Counsel
“such other duties as the Board may prescribe.” Id. § 153(d).
Under the terms of that delegation, the General Counsel
conducts litigation “in full accordance with the directions of the
Board.” Authority and Assigned Responsibilities of General
Counsel of National Labor Relations Board § I.B, 20 Fed. Reg.
2,175, 2,175 (Apr. 6, 1955).
Finally, the NLRB exercises substantial executive power
in administering section 9 of the NLRA, which governs the
determination of appropriate units for collective bargaining and
the conduct of union elections. 29 U.S.C. § 159. Wilcox
objects that elections are supervised primarily by the NLRB’s
regional offices, which in turn are supervised by the General
Counsel. See id. § 153(d). Yet the NLRA clearly gives the

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Board itself, not the General Counsel, final authority over
section 9 administration. See id. § 159(b) (“The Board shall
decide in each case … the unit appropriate for the purposes of
collective bargaining ….”); id. § 159(c) (“the Board shall
investigate” petitions to conduct a union election). Indeed, the
Board’s most prominent substantive rule to date involved not
an elaboration of unfair labor practices, but a determination of
appropriate bargaining units in the health care industry. See 29
C.F.R. § 103.30.
Because the NLRB’s rulemaking, adjudicatory, remedial,
enforcement, and election-administration powers are not solely
quasi-legislative or quasi-judicial, the agency falls well outside
the Humphrey’s Executor exception.
B
The MSPB likewise has more executive powers than ones
that Humphrey’s Executor deemed to be quasi-legislative or
quasi-judicial.
Start with rulemaking. The CSRA empowers the MSPB
to promulgate regulations “for the performance of its
functions,” 5 U.S.C. § 1204(h), and “for the purpose of section
7521,” id. § 1305. Section 7521 prohibits the “removal” of
ALJs without a prior MSPB determination of good cause. Id.
§ 7521(a), (b)(1). In Tunik v. MSPB, 407 F.3d 1326 (Fed. Cir.
2005), the Federal Circuit held these grants of rulemaking
power authorize the MSPB to decide, with the force and effect
of law, what constitutes a prohibited “removal.” Id. at 1345.
In other words, they permit the MSPB to define by regulation
what primary conduct section 7521 prohibits, not simply to
prescribe rules for the adjudication of disputes under that
provision. To be sure, the MSPB’s rulemaking authority with
respect to section 7521 does not rival the broad rulemaking
authority of the NLRB, and the contours of its other rulemaking

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authorities are unclear. Nonetheless, the existence of at least
some substantive rulemaking power counts as a distinction of
Humphrey’s Executor and as executive power under Article II.
See Seila Law, 591 U.S. at 218.
As for adjudication, the MSPB may be less aggressive than
the NLRB in naked appeals to shifting policy preferences, but
its adjudicatory powers still exceed what Humphrey’s Executor
deemed to be quasi-judicial. This is true on at least three
different dimensions—finality, breadth of jurisdiction, and
breadth of remedial authority.
Finality. The power to “unilaterally issue final decisions”
is a significant executive power that was not present in
Humphrey’s Executor. See Seila Law, 591 U.S. at 219. In
1935, an FTC cease-and-desist order remained ineffective
unless and until the agency persuaded a court of appeals to
enforce it. FTC v. Klesner, 280 U.S. 19, 22 (1929); Claire
Furnace, 274 U.S. at 170. In contrast, the MSPB may “take
final action on any” matter “within the jurisdiction of the
Board,” 5 U.S.C. § 1204(a)(1), and also may “order any
Federal agency or employee to comply” with any of its orders,
id. § 1204(a)(2). Aggrieved employees may obtain judicial
review of final MSPB decisions, but the decisions remain
effective unless and until a court of appeals sets them aside.
See id. § 7703.
Breadth of jurisdiction. In 1935, the FTC was a
specialized tribunal. At that time, section 5 of the FTC Act was
limited to addressing “unfair methods of competition.” See 38
Stat. at 719; cf. 15 U.S.C. § 45(a)(1) (now also addressing
“unfair or deceptive acts or practices”). So, the FTC was
largely directed towards antitrust enforcement, as reflected in
its role as a “master in chancery” for antitrust cases.
Humphrey’s Ex’r, 295 U.S. at 628. In contrast, the MSPB is

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more a jack-of-all-trades. In determining prohibited personnel
practices, it must administer portions of Title VII, the Age
Discrimination in Employment Act, the Fair Labor Standards
Act, the Rehabilitation Act, and the Whistleblower Protection
Act. 5 U.S.C. § 2302(b)(1), (8). And those five statutes
encompass only two of 14 categories of personnel practices
that the CSRA prohibits and that the MSPB must consider. Id.
§ 2302(b). The MSPB also must administer the Uniformed
Services Employment and Reemployment Rights Act and the
Veterans Employment Opportunities Act. See id.
§§ 1204(a)(1), 3330a(d)(1); 38 U.S.C. § 4324. It must
administer the Hatch Act, the Freedom of Information Act, and
various other statutes within the prosecutorial authority of the
Special Counsel. 5 U.S.C. § 1216(a). Finally, it must decide
whether employing agencies have meted out appropriate
discipline. Id. § 7513(d). To do that, the MSPB makes its own
“discretionary judgment,” which “is by no means” a mere legal
or factual inquiry. Douglas v. Veterans Admin., 5 M.S.P.B.
313, 325–26 (1981). Instead, it involves application of a non-
exclusive, twelve-factor balancing test that considers, among
other things, the nature of the offense, the employee’s work and
disciplinary record, the potential for rehabilitation, mitigating
circumstances, and the adequacy of alternative sanctions. See
Conor v. Dep’t of Veterans Affs., 8 F.4th 1319, 1324 (Fed. Cir.
2021) (citing Douglas, 5 M.S.P.B. at 332). According to the
MSPB, this searching inquiry is “considerably broader” than
one that courts would undertake. Douglas, 5 M.S.P.B. at 327.
Thus, it cannot plausibly be described as “quasi-judicial.”
Likewise, it cannot fairly be characterized as involving “no
policy except the policy of the law.” Humphrey’s Ex’r, 295
U.S. at 624.
Breadth of remedial authority. When it finds a legal
violation, the MSPB can do far more than simply order the
offending agency to cease and desist. For unwarranted

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employee discipline, the MSPB may order relief “including
reinstatement, backpay, and attorney’s fees.” Elgin, 567 U.S.
at 6. For prohibited personnel practices, it may order corrective
action that includes reinstatement, backpay, compensatory and
consequential damages, medical and other costs, travel
expenses, attorney’s fees, expert witness fees, and interest.
5 U.S.C. §§ 1214(g), 1221(g)(1). In cases where it imposes
discipline, the MSPB may order removal, demotion, debarment
from federal employment for up to five years, suspension,
reprimand, civil penalties of up to $1,000, or “any
combination” of these sanctions. Id. § 1215(a)(3)(A). And for
violation of its own orders, the MSPB also may order the salary
of an offending official to be withheld. Id. § 1204(e)(2)(A).
All of this sharply distinguishes Humphrey’s Executor. The
power to award “legal and equitable relief in administrative
adjudications” is an executive power that was not at issue there.
See Seila Law, 591 U.S. at 219. Moreover, if the power to
“seek daunting monetary penalties” in court is also such a
power, see id., then so too is the power to impose such penalties
unilaterally.
Unlike the FTC in 1935, the MSPB also may award
interim relief in some circumstances—and may do so on a
wholesale basis. Upon request by the Special Counsel, any
MSPB member may “order a stay of any personnel action” that
she reasonably believes to constitute a prohibited personnel
practice. 5 U.S.C. § 1214(b)(1)(A). Recently, Harris herself
invoked this authority to reinstate nearly 6,000 laid-off
employees pending further administrative proceedings. Order
on Stay Request, Special Counsel ex rel. John Doe v. USDA,
No. CB-1208-25-0020-U-1 (MSPB Mar. 5, 2025),
https://perma.cc/3F45-PKG5. That too far exceeds the FTC’s
remedial authority in 1935.

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34
Harris objects that we should not consider the MSPB’s
salary-withholding power because the statute granting it is
unconstitutional. This argument addresses only one of many
remedial powers that were not present in Humphrey’s
Executor. In any event, the argument fails on its own terms.
Harris contends that withholding a salary requires involvement
of the Comptroller General, who is a legislative official. She
invokes Bowsher, which held that Congress could not vest the
Comptroller General with the executive power to decide what
budget cuts a particular statute required. See 478 U.S. at 733–
34. The argument correctly assumes that the power to withhold
the salary of a government official is executive. But the
Comptroller General does not exercise this power. “[T]he
Board may order” that the offending employee “shall not be
entitled to receive payment for service as an employee” during
the period of non-compliance. 5 U.S.C. § 1204(e)(2)(A). The
MSPB must “certify” its order to the Comptroller General, who
is in no way authorized to review it. Id. So, unlike the statute
at issue in Bowsher, the CSRA does not give the Comptroller
General any discretion to bind the Executive Branch.
Finally, consider litigating authority, another executive
power not addressed in Humphrey’s Executor. The MSPB’s
power to appear “in any civil action brought in connection with
any function carried out by the Board,” 5 U.S.C. § 1204(i),
contemplates MSPB control of any district-court litigation
brought by or against the agency. And the MSPB sometimes
is the proper respondent when its orders are challenged in a
court of appeals. See Spruill, 978 F.2d at 684; Costello, 182
F.3d at 1381. That too cuts against the MSPB’s position here.
Purely adjudicatory agencies—ones designed to be “an
independent adjudicator” with no policymaking authority—are
generally not proper parties to defend their decisions on review,
just as district judges are generally not proper parties to defend
their decisions on appeal. Oil Chem. & Atomic Workers Int’l

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35
Union v. OSHRC, 671 F.2d 643, 651–52 (D.C. Cir. 1982); see
Hinson v. NTSB, 57 F.3d 1144, 1147 n.1 (D.C. Cir. 1995).
In sum, the MSPB has at least some substantive
rulemaking power; it administers a host of wide-ranging
federal statutes; it awards various kinds of affirmative,
compensatory, and punitive relief; and it litigates in court on its
own behalf. Taken together, these powers well exceed the
powers deemed to be quasi-legislative or quasi-judicial in
Humphrey’s Executor and the powers vested in the War Claims
Commission. For these reasons, Congress may not restrict the
President’s ability to remove MSPB members.
V
The constitutional problem in these cases arises from two
features of each agency: (1) the agency has been vested with
significant executive power that cannot be characterized as
quasi-legislative or quasi-judicial, and (2) Congress has
restricted the President’s ability to remove its members.
Wilcox and Harris urge us to solve the constitutional problem
by stripping away agency powers, rather than by declining to
enforce the removal restrictions.
We reject that proposal. When the Supreme Court
encounters a statute that unconstitutionally insulates an
executive officer from at-will removal, it has typically
responded by disregarding the removal restriction. See Myers,
272 U.S. at 176; Free Enter. Fund, 561 U.S. at 508–10; Seila
Law, 591 U.S. at 232–38. Our Circuit has done likewise.
Dellinger v. Bessent, No. 25-5052, 2025 WL 717383, at *1
(D.C. Cir. Mar. 5, 2025) (per curiam). Following that well-
worn path, we hold that the appropriate resolution here is to
disregard the statutory removal restrictions for NLRB and

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36
MSPB members, not to blue-pencil provisions from among the
full panoply of the executive powers of each agency.2
VI
We close by flagging three issues not resolved here.
First, we do not decide whether Congress may restrict the
President’s ability to remove officers with solely adjudicatory
functions. Our analysis above has distinguished the court-like
adjudication of bodies such as the War Claims Commission
from the Chenery II-like adjudication of agencies vested with
both adjudicatory and policymaking responsibilities. And we
have shown that the powers vested in the NLRB and MSPB
significantly exceed those vested in the FTC in 1935 and those
vested in the War Claims Commission. We express no opinion
regarding other agencies that may plausibly be described as
purely adjudicatory.
Second, despite multiple amicus briefs focused on this
point, we do not address whether Congress may restrict the
President’s ability to remove members of the Board of
Governors of the Federal Reserve System. Granting a stay in
this case, the Supreme Court noted that there is a “distinct
historical tradition” regarding the treatment of congressionally
chartered banks, which may bear on Congress’s ability to
restrict the removal of their officials. Wilcox, 145 S. Ct. at
2 The Supreme Court took a different approach in Bowsher.
After concluding that Congress had unconstitutionally conferred
executive power on a legislative officer removable only by Congress,
the Court responded by stripping the officer of that power. 478 U.S.
at 734–36. But this merely implemented a statutory “fallback”
provision setting forth how the law at issue should operate if one of
its provisions was held unconstitutional. See id. at 735. The NLRA
and the CSRA contain no such provision.

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37
1415; see also An Act to incorporate the subscribers to the
Bank of the United States, ch. 10, § 5, 1 Stat. 191, 193 (1791)
(directors of the First Bank of the United States were appointed
and removed “by the stockholders”). We have no occasion
here to address the scope or import of that tradition.
Third, because we hold that the President permissibly
removed Wilcox and Harris, we do not consider whether
wrongfully removed principal officers may obtain declaratory,
equitable, or mandatory relief against the President or other
government officials.
VII
For the reasons set forth above, we reverse the judgments
of the district courts.
So ordered.

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PAN, Circuit Judge, dissenting:
The public is well served when some parts of our
government are insulated from the fray of politics. That is
because certain government functions are, or should be,
nonpartisan. For example, courts of law and other adjudicators
that apply legal standards to facts must be impartial, and their
impartiality is protected when the decision-makers do not fear
losing their jobs when there is a change in presidential
administrations. And some agencies that employ subject-
matter expertise to address technical regulatory and policy
issues, such as the Federal Reserve, are better able to execute
their duties and to inspire public confidence in their decision-
making if they are distanced from political considerations.
Such “independent” government entities have existed in
our country in some form since 1790.1 And 138 years ago,
Congress created the first nonpartisan expert independent
agency, the Interstate Commerce Commission (ICC). The
Supreme Court confirmed that such agencies are constitutional
ninety years ago.2 Today, approximately thirty-three
independent agencies apply specialized expertise to make
merit-based decisions on behalf of the American people, in
diverse areas like commerce, public safety, and energy.3 And
numerous courts of law — such as the Tax Court, the Court of
Appeals for the Armed Forces, and the Court of Appeals for
Veterans Claims — serve as independent adjudicators, even
though they are housed within the Executive Branch.
1 See Christine Kexel Chabot, Is the Federal Reserve
Constitutional? An Originalist Argument for Independent Agencies,
96 Notre Dame L. Rev. 1, 39–40 (2020) (describing the Sinking Fund
Commission of 1790, which had two members who were not
removable by the President).
2 See Humphrey’s Executor v. United States, 295 U.S. 602
(1935).
3 See infra notes 14–20.

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2
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.4 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, 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: They hold that the for-cause removal protections that
safeguard the political independence of the National Labor
Relations Board (NLRB) and the Merit Systems Protection
Board (MSPB) are unconstitutional. Under my colleagues’
reasoning, it appears that no independent agencies may
lawfully exist in this country: Their determination that the
MSPB cannot be independent — even though it is purely
adjudicatory and does not touch upon core constitutional
functions assigned to the President — suggests that no agencies
can be independent. Although my colleagues attempt to couch
their analysis in narrow terms, they redefine the type of
executive power that must be placed under the exclusive
command of the President, and effectively grant him dominion
over approximately thirty-three previously independent
agencies.
4 See infra note 8.

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3
This case must be viewed in the context of a broader
reevaluation of how agency independence fits in our
constitutional system. The Supreme Court upheld the
constitutionality of independent agencies, like the MSPB and
the NLRB, in Humphrey’s Executor v. United States, 295 U.S.
602 (1935), and it has repeatedly reaffirmed the essential
holding of Humphrey’s. See, e.g., Wiener v. United States, 357
U.S. 349, 356 (1958); Seila Law LLC v. CFPB, 591 U.S. 197,
218 (2020). But the Court has expressed doubts about the
scope of Humphrey’s and is poised to reconsider its ruling in
that case. See Trump v. Slaughter, No. 25-332, slip op. at 1
(U.S. Sept. 22, 2025) (granting certiorari before judgment and
setting oral argument for December 2025). The pendency of
Slaughter places us in an unusual position: Although the
constitutional arguments before us mirror those raised in
Slaughter, the Supreme Court has rebuffed requests to hear the
instant cases in conjunction with Slaughter and has instead left
these cases for us to decide. See Trump v. Wilcox, 145 S. Ct.
1415, 1416–17 (2025) (declining to address the government’s
request for certiorari before judgment); Order Den. Cert.
Before J., Harris v. Bessent, No. 25-312 (U.S. Sept. 22, 2025);
Order Den. Cert. Before J., Wilcox v. Trump, No. 25-319 (U.S.
Sept. 22, 2025). We, in turn, expedited the instant appeals, and
we must consider them in the face of conflicting signals from
the Court. See Wilcox, 145 S. Ct. at 1416–17 (staying lower-
court injunctions favoring Wilcox and Harris based on a
finding that the government is likely to succeed on the merits,
but leaving intact the “narrow exceptions [to at-will removal]
recognized by our precedents”). Regardless of the odd
procedural posture in which we find ourselves, the bottom line
is that we are duty-bound to apply Humphrey’s until the
Supreme Court overrules it, and Humphrey’s requires us to
uphold the independence of the MSPB and the NLRB.

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4
The government takes the position that agency
independence is unconstitutional because the President must
maintain ironclad control over any government entity that is
within the Executive Branch. It openly asks the Supreme Court
to overrule Humphrey’s, and it asks this court to essentially do
the same.5 The government’s extreme view of executive power
sharply departs from precedent and from prior applications of
the “unitary executive theory.” Although the Supreme Court
has adhered to a robust conception of executive power and the
unitary executive, it has never held that the Constitution flatly
prohibits the existence of independent agencies. If courts
implicitly or explicitly adopt such an extreme interpretation of
the Constitution after at least 138 years of contrary practice,
with the consequence of awarding even more power to a
President who has pushed the limits of Article II, I fear that it
will erode public confidence in the judiciary. Because
independent agencies have served our nation well for over a
century — with the blessing of all three branches of
government, under both Republican and Democratic leaders —
the government’s new argument that agency independence
inflicts “a grave harm to the separation of powers” lacks
credibility. Gov’t Br. 2. That is especially so where the
government’s theory purports to promote democratic
accountability while asking unelected judges to rewrite the
constitutional order.
Neither this case nor Slaughter is about whether the
President should be the master of all executive power wielded
by the federal government. The Supreme Court has already
5 See Brief for the Petitioners at 5, Slaughter, No. 25-332 (Oct.
10, 2025) (“If Humphrey’s Executor is not already a dead letter, this
Court should overrule it . . . .”); Gov’t Br. 21 (“Because Humphrey’s
Executor rests on repudiated reasoning, the decision can be
understood as precedential only as to the specific question it
resolved.”).

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5
recognized that the Constitution vests all executive power in
the President; and as a result, he generally is entitled to remove
principal officers of the Executive Branch, such as agency
leaders, in his discretion. See Seila Law, 591 U.S. at 215; Free
Enter. Fund v. PCAOB, 561 U.S. 477, 483 (2010). The current
question before the courts is narrower: It is whether the
Constitution mandates that there can be no exceptions to that
general rule of at-will removal. Here, my colleagues implicitly
agree with the government that no such exceptions exist —
they adopt a vanishingly narrow view of the types of agencies
that may remain independent. Meanwhile, the government
asks both this court and the Supreme Court to accept its
maximalist view of executive power and to abandon
Humphrey’s.
Our starting point is the Supreme Court’s recognition of
an exception to the President’s at-will removal authority for
“multimember expert agencies that do not wield substantial
executive power.” Seila Law, 591 U.S. at 218. To overrule
that precedent so that the President may seize total control over
all independent agencies, the government must argue that the
current exception is impermissible because the Constitution
compels the President’s complete domination of the Executive
Branch. But the government’s position is logically flawed:
While arguing for total presidential control in sweeping terms,
the government nonetheless concedes that it may be
appropriate to carve out exceptions for the Federal Reserve and
Article I courts (which are situated within the Executive
Branch).6 In other words, the government argues for no
6 Reply Br. 13–15 (noting that Federal Reserve officials might
not be subject to at-will removal because of the agency’s history);
Oral Arg. 32:29–44 (“The common thread between the Article I
courts, the Fed, the Article IV courts is that, as either historical or
doctrinal matter, there is a significant . . . question as to whether that

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6
exceptions while conceding that exceptions are allowed. If the
Constitution permits Congress to impose for-cause removal
restrictions to protect the independence of Federal Reserve
officials and Article I judges, there is no logical way to hold
that the Constitution nevertheless forbids Congress from
protecting the leaders of other government entities that have
similar needs for independence (i.e., because they also are
impartial adjudicators or have a historical tradition of political
independence).
Adoption of the government’s maximalist theory of
executive power (implicitly or explicitly) threatens to
fundamentally change the character of our government. 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. 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. 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.
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.
governmental entity is wielding traditional executive power.”); Brief
for the Petitioners at 23, Slaughter, No. 25-332 (Oct. 10, 2025) (“No
one disputes that the President’s illimitable power of removal
extends only to executive officers and excludes truly non-executive
appointees, such as D.C. Court of Appeals judges.” (cleaned up)).

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7
The government urges an unprecedented interpretation of
the Constitution that would lead to the full politicization of our
government and a massive transfer of power to the President.
My colleagues take an alternative approach in name only.
Rather than expressly declaring Humphrey’s a dead letter, they
redefine Humphrey’s “substantial executive power” exception
such that it does not allow for any independent agencies. In so
doing, they enable the government to achieve its goals while
maintaining the appearance of judicial restraint. Under either
approach, independent agencies as we know them cannot exist
in this country. Because that outcome is not required by our
Constitution and does harm to our nation, I respectfully dissent.
I.
A. Legal Background
In 1935, the Supreme Court confirmed that Congress has
the power to create independent agencies in a landmark
opinion: Humphrey’s Executor v. United States. President
Franklin D. Roosevelt claimed that he was entitled to remove
commissioners of the Federal Trade Commission (FTC) at will,
and his Administration asserted that the statute that allowed
only “for cause” removal of FTC commissioners was “an
unconstitutional interference with the executive power of the
President.” Brief for the United States at 7, 20, Humphrey’s,
295 U.S. 602 (No. 667), 1935 WL 32965, at *7, *20. The
Supreme Court unanimously rejected that argument. The
Court upheld the FTC just as Congress had created it — as “a
body of experts who shall gain experience by length of service”
and “which shall be independent of executive authority, except
in its selection, and free to exercise its judgment without the
leave or hindrance of any other official or any department of
the government.” Humphrey’s, 295 U.S. at 625–26. The Court
emphasized that the FTC was “neither political nor executive,”

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8
was “charged with the enforcement of no policy except the
policy of the law,” and was to be “nonpartisan” and
“impartial[].” Id. at 624. Notably, the FTC had five members
with staggered terms, and no more than three of them could be
from the same political party. Id. at 620. The Court held that
Congress had authority that “cannot well be doubted” to create
“quasi legislative” or “quasi judicial” agencies, and to require
them “to act in discharge of their duties independently of
executive control.” Id. at 629. Moreover, freedom from “the
suspicion of partisan direction” depended on for-cause removal
protection, because “one who holds his office only during the
pleasure of another cannot be depended upon to maintain an
attitude of independence against the latter’s will.” Id. at 625,
629.7
After the Supreme Court’s holding in Humphrey’s,
Congress created many more independent agencies in the mold
of the FTC — i.e., multimember expert bodies, performing
nonpartisan functions with impartiality. And each new
agency’s organic statute was signed into law by the then-
serving President.8 Furthermore, two decades after
7 The Court distinguished its previous decision in Myers v. United
States, 272 U.S. 52 (1926). There, the Court invalidated a statutory
provision that required the Senate’s advice and consent for the
removal of postmasters, while making numerous comments about
the scope of executive power. Id. at 163–64. Humphrey’s limited
Myers to its holding, which reached only “purely executive officers.”
Humphrey’s, 295 U.S. at 627–28, 631–32.
8 Presidents who have signed legislation creating independent
agencies include: Grover Cleveland (Interstate Commerce
Commission, see Interstate Commerce Act of 1887, Pub. L. No. 49-
104, § 11, 24 Stat. 379, 383); Calvin Coolidge (National Mediation
Board, see Railway Labor Act, Pub. L. No. 69-257, § 4, 44 Stat. 577,
579 (1926)), Franklin D. Roosevelt (National Labor Relations Board,

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9
Humphrey’s, the Supreme Court reaffirmed the legality of
independent Executive Branch agencies in Wiener v. United
States, 357 U.S. 349 (1958), extending for-cause removal
protection to members of the purely adjudicatory nonpartisan
War Claims Commission, even though no express statutory
provision required it. Thus, in the ninety years since
Humphrey’s, all three branches of our government have
accepted the important role of apolitical independent agencies
within our constitutional system.
Fast forward from 1935 to the year 2020. In Seila Law
LLC v. Consumer Financial Protection Bureau, the Supreme
see National Labor Relations Act of 1935, Pub. L. No. 74-198, § 3(a),
49 Stat. 449, 451); Harry Truman (War Claims Commission, see War
Claims Act of 1948, Pub. L. No. 80-896, 62 Stat. 1240; Wiener, 357
U.S. at 354–56); Richard Nixon (Consumer Product Safety
Commission, see Consumer Product Safety Act, Pub. L. No. 92-573,
§ 4(a), 86 Stat. 1207, 1210 (1972)), Gerald Ford (Nuclear Regulatory
Commission, see Energy Reorganization Act of 1974, Pub. L. No.
93-438, § 201(e), 88 Stat. 1233, 1243), Jimmy Carter (Merit Systems
Protection Board, see Civil Service Reform Act of 1978, Pub. L. No.
95-454, § 1202(d), 92 Stat. 1111, 1122), Ronald Reagan (National
Indian Gaming Commission, see Indian Gaming Regulatory Act,
Pub. L. No. 100-497, § 5(b)(6), 102 Stat. 2467, 2470 (1988)), George
H.W. Bush (Chemical Safety and Hazard Investigation Board, see
Clean Air Act Amendments of 1990, Pub. L. No. 101-549,
§ 112(r)(6)(B), 104 Stat. 2399, 2565), Bill Clinton (Surface
Transportation Board, see ICC Termination Act of 1995, Pub. L. No.
104-88, § 701(b)(3), 109 Stat. 803, 932–33), George W. Bush
(Department of Defense: Board of Actuaries, see National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 906(a)(1), 122 Stat. 3, 275–76), and Barack Obama (Consumer
Financial Protection Bureau, see Dodd-Frank Wall Street Reform
and Consumer Protection Act, Pub. L. No. 111-203, § 1011(c)(3),
124 Stat. 1376, 1964 (2010), independence invalidated by Seila Law,
591 U.S. at 230–38).

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10
Court confronted a newly created independent agency with a
novel leadership structure: the CFPB. 591 U.S. at 207, 220.
“Congress tasked the CFPB with implementing and enforcing
a large body of financial consumer protection laws . . . .” Id. at
206 (cleaned up). The CFPB could issue “binding regulations”
and exercise “extensive adjudicatory authority.” Id. at 206–07.
It also possessed “potent enforcement powers,” including “the
authority to conduct investigations, issue subpoenas and civil
investigative demands, initiate administrative adjudications,
and prosecute civil actions in federal court.” Id. at 206 (citing
12 U.S.C. §§ 5562, 5564(a), (f)). The Supreme Court observed
that the CFPB was “almost wholly unprecedented” and differed
from the “traditional” multileader expert agency examined in
Humphrey’s in important respects. Id. at 207, 220. In
particular, the CFPB had a single Director who enjoyed a five-
year term, which meant that the for-cause removal protection
might prevent a President with only a four-year term from ever
appointing the agency’s leader. Id. at 225. Furthermore, the
CFPB had a unique funding arrangement — it was funded by
the Federal Reserve and therefore not subject to the
appropriations process controlled by Congress and the
President. Id. at 207–08. Citing those unusual structural
features, the Supreme Court determined that the CFPB
concentrated too much power in one person — the CFPB
Director — who was accountable to no one. Id. at 204–05,
224–25. The Court thus struck down the for-cause removal
protection for the Director, holding that it was unconstitutional
and violated the separation of powers. It addressed this
constitutional infirmity by making the CFPB Director
removable at the President’s will. Id. at 230–38.
In disapproving the unprecedented structure of the CFPB,
the Court noted that although Presidents by default have “at
will” removal authority over principal officers within the
Executive Branch, Humphrey’s established an exception to that

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11
rule for “multimember expert agencies that do not wield
substantial executive power.” Seila Law, 591 U.S. at 218. The
Court did not specify what would constitute “substantial
executive power” under its test. Id. But the Court made clear
that it would “not revisit” Humphrey’s and would leave it “in
place,” even though it declined to “extend” the Humphrey’s
exception to a novel, single-director government agency. Id. at
215, 220, 228. Thus, the Court expressly left intact its prior
approval of “traditional” multileader independent agencies. Id.
at 207. Indeed, seven members of the Court endorsed the
notion that Congress could address the “problem” posed by the
CFPB’s lack of accountability by “converting the CFPB into a
multimember agency.” Id. at 237 (Roberts, C.J., joined by
Alito & Kavanaugh, JJ., concurring in the judgment); id. at 298
(Kagan, J., joined by Ginsburg, Breyer & Sotomayor, JJ.,
concurring in the judgment in part and dissenting in part). That
holding was consistent with other cases, before and since, that
also addressed the President’s authority to remove agency
leaders and left Humphrey’s untouched. See Free Enter. Fund,
561 U.S. at 483–84 (striking down two layers of for-cause
removal protection for an official but declining to “reexamine”
Humphrey’s); Collins v. Yellen, 594 U.S. 220, 250–51 (2021)
(striking down the independence of an agency headed by a
single person, regardless of whether the executive power it
wielded was significant, but recognizing that Seila Law did
“not revisit our prior decisions” (cleaned up)).
B. Procedural Background
The President dismissed MSPB Chair Cathy Harris and
NLRB Member Gwynne Wilcox in violation of the for-cause
removal statutes that safeguard the independence of their
respective agencies. The government claims that those for-
cause removal statutes are unconstitutional and that the
President therefore need not abide by them. Specifically, the

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12
government asserts that Humphrey’s allowed for-cause
removal protections only for agencies that exercise “no part of
the executive power,” and “any exercise of executive power
subjects an agency head to the President’s control.” Gov’t Br.
22, 26–27 (emphasis added). According to the government, the
MSPB and the NLRB wield “substantial executive power”
even if their functions are largely adjudicatory, and an agency’s
exercise of any executive power requires it to be placed under
the control of the President. In sum, the government’s position
is that the President is entitled to remove as he pleases any and
all principal officers of any executive agency — including the
MSPB and the NLRB. Otherwise, the theory goes, the
separation of powers will be violated.
Two judges of the district court rejected the government’s
arguments. See Harris v. Bessent (Harris I), 775 F. Supp. 3d
164 (D.D.C. 2025) (Contreras, J.); Wilcox v. Trump (Wilcox I),
775 F. Supp. 3d 215 (D.D.C. 2025) (Howell, J.). They held
that Humphrey’s and Wiener are controlling Supreme Court
precedents that required them to uphold the for-cause removal
protections for members of the MSPB and the NLRB, which
are traditional multimember expert agencies. Judge Contreras
and Judge Howell issued permanent injunctions that effectively
restored Harris and Wilcox to their positions and required the
government to comply with the applicable for-cause removal
statutes. See Harris I, 775 F. Supp. 3d at 189; Wilcox I, 775 F.
Supp. 3d at 240–41. The government appealed.
During the pendency of the instant appeals, the
government moved to stay the district court’s injunctions, and
this court ultimately denied the government’s request. See
Harris v. Bessent (Harris III), Nos. 25-5037, 25-5057, 2025
WL 1021435 (D.C. Cir. Apr. 7, 2025) (en banc) (per curiam),
vacating Harris v. Bessent (Harris II), 2025 WL 980278 (D.C.
Cir. Mar. 28, 2025) (per curiam). The government then asked

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the Supreme Court to stay the district court’s injunctions
pending appeal and to grant a writ of certiorari before
judgment. We heard oral argument in these cases — on an
expedited schedule — on May 16. On May 22, the Supreme
Court issued an order staying the district court’s judgments
pending final disposition of the cases. See Wilcox, 145 S. Ct.
1415. In so doing, the Court held that the government would
likely succeed on the merits because “the NLRB and MSPB
[likely] exercise considerable executive power.” Id. at 1416.
However, it expressly left intact the “narrow exceptions [to at-
will removal] recognized by [its] precedents.” Id. (citing Seila
Law, 591 U.S. at 215–18). The Court did not address the
government’s request for a writ of certiorari before judgment.
See id. at 1416–17.
Parallel to Harris’s and Wilcox’s cases, the government
has been litigating the President’s removal of FTC
Commissioner Rebecca Slaughter. After the President
removed Slaughter without cause, the district court relied on
Humphrey’s to order Slaughter’s reinstatement. This court
denied the government’s motion for a stay of the district court’s
order pending appeal. See Slaughter v. Trump, No. 25-5261,
2025 WL 2551247 (D.C. Cir. Sept. 2, 2025). The government
then asked the Supreme Court for a stay of the district court’s
judgment in Slaughter and petitioned for a writ of certiorari
before judgment.
Before the Supreme Court ruled on the Slaughter
applications, Harris and Wilcox filed separate petitions for
writs of certiorari before judgment. Petition for a Writ of
Certiorari Before Judgment, Harris v. Bessent, No. 25-312
(U.S. Sept. 15, 2025); Petition for a Writ of Certiorari Before
Judgment, Wilcox v. Trump, No. 25-319 (U.S. Sept. 15, 2025).
They argued that their cases and Slaughter present similar legal
issues and that the Court, should it grant certiorari before

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judgment in Slaughter, should also grant certiorari before
judgment in Harris and Wilcox and consolidate the three cases.
The Court granted a stay of the district court’s injunction in
Slaughter and granted a writ of certiorari before judgment in
that case. But the Court denied both Harris’s and Wilcox’s
petitions for certiorari before judgment, thus leaving the instant
cases for this court to decide. The Court now is poised to hear
oral arguments in Slaughter.
Meanwhile, we are called upon to decide (1) whether the
government’s constitutional challenge to the for-cause removal
protections afforded to leaders of the MSPB and the NLRB is
foreclosed by Humphrey’s and Wiener; and (2) if it is not,
whether the Supreme Court’s precedents and the Constitution
require us to adopt the expansive view of executive authority
urged by the government. The government also argues that the
district court lacked authority to effectively reinstate Harris and
Wilcox to their posts at their respective agencies.
II.
A. Applying Existing Precedents
Just five years after Seila Law was decided, the
government comes before us to argue that the MSPB and the
NLRB — two traditional multileader expert agencies — are
unconstitutional in their current forms. Although Seila Law
held that the President generally has at-will removal authority
over all principal officers in the Executive Branch, it
recognized a long-standing exception for “multimember expert
agencies that do not wield substantial executive power” — and
it expressly left Humphrey’s on the books. See Seila Law, 591
U.S. at 204–05, 215–18. The most sensible interpretation of
Seila Law’s holding is that an agency with features and
functions like those approved by the Court in Humphrey’s

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passes muster and, by implication, does not exercise
“substantial executive power.” The MSPB and the NLRB meet
that test.
The government contends, however, that the MSPB and
the NLRB may not be placed beyond the President’s total
control because each wields “executive power.” The
government takes the position that all Executive Branch
entities wield executive power and that “any exercise of
executive power subjects an agency head to the President’s
control.” Gov’t Br. 26 (emphasis added). According to the
government, because the MSPB and the NLRB are within the
Executive Branch, their predominantly adjudicatory functions
are exercises of executive power, and they therefore must be
controlled by the President. That theory departs from the
Supreme Court’s holding in Seila Law, which preserved the
independence of multileader expert agencies that do not wield
“substantial executive power,” not “any executive power.” In
short, Humphrey’s allows the existence of independent
multimember expert agencies that exercise no greater powers
than did the 1935 FTC; but the government suggests that zero
independent agencies are constitutional. And because the
government’s theory leaves no room in any corner of the
Executive Branch for any exceptions to the President’s at-will
removal authority, it eviscerates Humphrey’s. The government
thus does not ask us to abide by Humphrey’s, but instead
effectively asks us to overrule it, which we are not at liberty to
do.
As I see it, the MSPB and the NLRB fall squarely within
the exception to the President’s at-will removal authority that
the Supreme Court acknowledged in Humphrey’s and left “in
place” in Seila Law. Humphrey’s and Wiener control this case
because the MSPB and the NLRB are multimember expert
agencies that (1) exercise no more executive power than did the

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1935 FTC that was approved in Humphrey’s, and (2) are
predominantly adjudicatory, like the independent War Claims
Commission that was approved in Wiener. They are therefore
“multimember expert agencies that do not wield substantial
executive power.” Seila Law, 591 U.S. at 218. Accordingly,
for-cause removal protections for leaders of the MSPB and the
NLRB are constitutional.
As previously discussed, Humphrey’s upheld the
constitutionality of for-cause removal protections for
commissioners of the 1935 FTC. The “set of powers”
exercised by the FTC that were “the basis for [the Humphrey’s]
decision,” Seila Law, 591 U.S. at 219 n.4, included the
authority to issue and then adjudicate complaints charging
unfair competition; to exercise “wide powers of investigation”
and “report to Congress with recommendations”; and to
recommend remedies in antitrust suits brought by the Attorney
General in federal court, Humphrey’s, 295 U.S. at 620–21
(citing Federal Trade Commission Act, Pub. L. No. 62-203,
§§ 5–7, 38 Stat. 717, 719–22 (1914)).
The Humphrey’s Court described key features of the FTC
that demonstrated its nonpartisanship and its need for
independence. Notably, the FTC was led by multiple
commissioners serving staggered, seven-year terms and
balanced along partisan lines. See Humphrey’s, 295 U.S. at
620, 624. Moreover, it was intended to be an “independent”
“body of experts” that was “charged with the enforcement of
no policy except the policy of the law.” Id. at 624–25. The
Court also observed that the FTC’s functions were “neither
political nor executive, but predominantly quasi judicial and
quasi legislative,” and any executive functions thus were
merely ancillary. Id. at 624, 628 & n.1. The Supreme Court
also addressed adjudicatory functions in Wiener, where the
Court held that the President had no power to “remove a

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member of an adjudicatory body like the War Claims
Commission merely because he wanted his own appointees on
such a Commission.” 57 U.S. at 356. At bottom, the
constitutionality of removal restrictions “will depend upon the
character of the office.” Humphrey’s, 295 U.S. at 624, 631. As
relevant here, both the MSPB and the NLRB are predominantly
adjudicative and share many of the key characteristics of the
1935 FTC and the War Claims Commission that justified their
independence.
The MSPB functions more like a court than a regulator. It
is “predominantly an adjudicatory body,” as the government
concedes. Oral Arg. 12:19–23, Harris II, 2025 WL 980278
(No. 25-5037); see also 5 U.S.C. § 1204(a)(1). President
Jimmy Carter proposed the MSPB as “the adjudicatory arm of
the new personnel system,” with a bipartisan multimember
structure that would “guarantee independent and impartial
protection to employees.” Federal Civil Service Reform
Message to the Congress, 1 Pub. Papers 445 (Mar. 2, 1978).
Thus, the MSPB’s mission is “to adjudicate federal
employment disputes.” Harrow v. Dep’t of Def., 601 U.S. 480,
482 (2024). Specifically, it hears appeals of adverse
employment actions brought by federal workers. See 5 U.S.C.
§§ 7701(a), 7512, 7513(d). It also resolves in the first instance
a handful of other matters, such as cases brought by the Office
of Special Counsel for “corrective action” concerning
“prohibited personnel practice[s]” by agencies. Id.
§ 1214(b)(2)(C); see also id. §§ 1214(b)(4)(B)(i), 1215(a)(1),
3592(a)(2), 7521(b).
The structure of the MSPB is “patterned on the classic
independent regulatory agency sanctioned” in Humphrey’s.
FEC v. NRA Pol. Victory Fund, 6 F.3d 821, 826 (D.C. Cir.
1993). As in Humphrey’s, the President may remove a member
of the MSPB “only for inefficiency, neglect of duty, or

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malfeasance in office.” 5 U.S.C. § 1202(d); Humphrey’s, 295
U.S. at 622. And like the 1935 FTC, the three members of the
MSPB must be drawn from different political parties, and they
serve staggered terms of seven years. 5 U.S.C. §§ 1201,
1202(a)–(c); Humphrey’s, 295 U.S. at 620.
The MSPB is passive and must wait for appeals and cases
to be initiated by federal employees, employer agencies, or the
Office of Special Counsel. Harris II, 2025 WL 980278, at *30
(Millett, J., dissenting) (citing 5 U.S.C. §§ 1204(a)(1),
1214(b)(1)(a); 5 C.F.R. § 1201.3). Notably, it is the Office of
Special Counsel that investigates and prosecutes certain kinds
of misconduct by federal agencies and then petitions the MSPB
for corrective action. See 5 U.S.C. § 1212. As a de facto
matter, the Special Counsel now answers to the President.9
Moreover, the MSPB does not regulate through rulemaking
because its rulemaking authority is limited to “such regulations
as may be necessary for the performance of its functions.” 5
U.S.C. § 1204(h).10
9 The Special Counsel is appointed by the President with the
advice and consent of the Senate. Although a statute confers for-
cause removal protection on the Special Counsel, see 5 U.S.C.
§ 1211, the President deemed that statute unconstitutional and fired
the former Special Counsel, Hampton Dellinger. Although the
district court ordered the government to reinstate Dellinger, a special
panel of this court stayed the district court’s order pending appeal,
Dellinger v. Bessent, No. 25-5052, 2025 WL 887518 (D.C. Cir. Mar.
10, 2025) (per curiam), and Dellinger subsequently dropped his suit.
As a result, the President has de facto authority to appoint a Special
Counsel of his own choosing. See Defendants’ Notice of the
President’s Designation of Acting Special Counsel, Dellinger v.
Bessent, No. 25-cv-385 (D.D.C. Feb. 12, 2025), ECF No. 13.
10 The responsibility of enforcing civil-service regulations and
laws and “aiding the President” in preparing civil-service rules and
policies is assigned to the Office of Personnel Management, a
separate agency. 5 U.S.C. § 1103(a)(7).

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As the district court explained, the MSPB “spends nearly
all of its time adjudicating inward-facing personnel matters
involving federal employees.” Harris I, 775 F. Supp. 3d at 176
(cleaned up). The MSPB’s adjudicatory process is “designed
to reach consensus based on established MSPB and federal
case law,” as decisions are drafted by career attorneys without
MSPB members directing the results in advance. See Brief for
Former Board Members and General Counsel of the MSPB as
Amici Curiae Supporting Appellee 8. Like the War Claims
Commission in Wiener, the MSPB hears claims that are
“‘adjudicated according to law,’ that is, on the merits of each
claim, supported by evidence and governing legal
considerations”; and it serves as “a body that [is] ‘entirely free
from the control or coercive influence [of the President], direct
or indirect.’” 357 U.S. at 355 (quoting Humphrey’s, 295 U.S.
at 629). In short, the MSPB is so clearly adjudicatory and free
of quintessential executive responsibilities that if it exercises
“substantial executive power,” then every agency does.11
11 My colleagues’ discussion of the MSPB’s supposedly
substantial “executive” powers is unconvincing. They suggest that
the MSPB exercises substantial executive power because (1) it issues
“final decisions,” (2) it has “jack-of-all-trades” jurisdiction that is
less “specialized” than the 1935 FTC, and (3) it has the power to
award “legal and equitable relief in administrative adjudications.”
Maj. Op. 31–33 (citations omitted). But in Wiener, the Supreme
Court upheld for-cause removal protections for the leaders of the
War Claims Commission, which enjoyed “finality of determination”
over a “large number of claimants [with a] diversity in the specific
circumstances giving rise to the[ir] claims,” and which could order
“compensat[ion for] internees, prisoners of war, and religious
organizations.” 357 U.S. at 350, 354–55. Moreover, my colleagues
do not explain why the features they highlight represent the exercise
of “executive” power. In fact, many courts issue final decisions,

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20
Congress created the NLRB to enforce the National Labor
Relations Act of 1935 (NLRA), which encourages collective
bargaining and protects the rights of workers. Pub. L. No. 74-
198, 49 Stat. 449 (codified as amended at 29 U.S.C. §§ 151–
169). In designing the NLRB, Congress relied on Humphrey’s:
It enacted the NLRA “just over a month after Humphrey’s
Executor was decided and modeled the statute on the FTC’s
organic statute.” Harris II, 2025 WL 980278, at *31 (Millett,
J., dissenting) (citing the two agencies’ organic statutes).
The Board of the NLRB closely resembles the
Humphrey’s model. It consists of five members, appointed by
the President with the advice and consent of the Senate, who
serve staggered five-year terms. 29 U.S.C. § 153(a). A
member “may be removed by the President, upon notice and
hearing, for neglect of duty or malfeasance in office, but for no
other cause.” Id. Although no statutory provision requires a
partisan balance in the NLRB Board’s membership,
“Presidents since Eisenhower have adhered to a ‘tradition’ of
appointing no more than three members from their own party.”
Harris II, 2025 WL 980278, at *31 (Millett, J., dissenting)
(quoting Brian D. Feinstein & Daniel J. Hemel, Partisan
Balance with Bite, 118 Colum. L. Rev. 9, 54–55 (2018)).
The Board of the NLRB is “predominantly an adjudicatory
body.” Harris II, 2025 WL 980278, at *31 (Millett, J.,
dissenting). It decides disputes about unfair labor practices and
resolves union-representation questions. 29 U.S.C. § 159(b),
(c)(1)(A). The Board’s remedial authority includes issuing
cease-and-desist orders and orders to employers or unions to
under many different statutes, and award legal and equitable relief,
which suggests that those functions should be considered quasi-
judicial under Humphrey’s.

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take “affirmative action,” such as “reinstatement of employees
with or without back pay.” Id. § 160(c). But to enforce its
orders, the Board must petition a federal court of appeals. Id.
§ 160(e); see also Dish Network Corp. v. NLRB, 953 F.3d 370,
375 n.2 (5th Cir. 2020) (“The NLRB may be the only agency
that needs a court’s imprimatur to render its orders
enforceable.”). Judicial review of a Board order is also
available for “[a]ny person aggrieved by a final order of the
Board.” 29 U.S.C. § 160(f).
Importantly, the investigation and prosecution of unfair
labor practices are performed by the General Counsel of the
NLRB, who brings cases before the Board for adjudication.
The General Counsel is appointed by the President, with the
advice and consent of the Senate, and is removable by the
President at will. 29 U.S.C. § 153(d). As a result, all
investigative and prosecutorial functions — hallmarks of
executive power — are wielded by an official accountable to
the President. Cf. Morrison v. Olson, 487 U.S. 654, 706 (1988)
(Scalia, J., dissenting) (“Governmental investigation and
prosecution of crimes is a quintessentially executive
function.”). Thus, “the character” of the Board is
“predominantly” adjudicative. Humphrey’s, 295 U.S. at 624,
631.12
12 The Board has only “circumscribed” rulemaking authority.
Harris II, 2025 WL 980278, at *31 (Millett, J., dissenting). True, it
has “authority . . . to make, amend, and rescind, in the manner
prescribed by [the Administrative Procedure Act], such rules and
regulations as may be necessary to carry out the provisions of [the
NLRA].” 29 U.S.C. § 156. But in practice, the Board does not
“promulgate binding rules,” in contrast to the CFPB. Seila Law, 591
U.S. at 218. “From its inception in 1935, the Board has exhibited a
negative attitude toward setting down principles in rulemaking,
rather than adjudication.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d

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There is no denying “the intrinsic judicial character of the
task[s]” that are performed by the MSPB and the NLRB: They
apply law to facts and resolve cases. Wiener, 357 U.S. at 355.
They do not perform any quintessentially executive functions,
such as investigating and prosecuting cases to execute the law.
Nor do they touch upon subject areas that are expressly in the
President’s bailiwick, such as foreign affairs or national
defense. Moreover, the quasi-judicial duties of the MSPB and
the NLRB do not interfere with the President’s exercise of
executive power or impede the President’s ability to faithfully
execute the laws. See Morrison, 487 U.S. at 689–90 (“The
analysis contained in our removal cases is designed . . . to
ensure that Congress does not interfere with the President’s
exercise of the ‘executive power’ and his constitutionally
appointed duty to ‘take care that the laws be faithfully
executed’ under Article II.”).
Because both the MSPB and the NLRB are predominantly
adjudicatory, they wield less executive power than did the 1935
FTC, which had “wide powers of investigation” and authority
to issue complaints that it then adjudicated. Humphrey’s, 295
U.S. at 620–21; see also U.S. ex rel. Milwaukee Soc.
Democratic Publ’g Co. v. Burleson, 255 U.S. 407, 427–28
(1921) (explaining that when an executive official is “making
947, 949 (D.C. Cir. 2013) (cleaned up), overruled on other grounds
by Am. Meat Inst. v. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014)
(en banc). Although the government asserts that “the NLRB . . .
promulgates substantive rules of general applicability governing
employer-employee relations,” Gov’t Br. 29, the entire corpus of
substantive NLRB rules is limited to: (1) a rule concerning collective
bargaining units in healthcare facilities, 29 C.F.R. § 103.30; (2) a rule
addressing joint-employer status, id. § 103.40; and (3) jurisdictional
standards for colleges and universities, symphony orchestras, and
dog- or horse-racing industries, id. §§ 103.1, 103.2, 103.3.

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[a] determination [in which] he must, like a court or a jury,
form a judgment whether certain conditions prescribed by
Congress exist, on controverted facts or by applying the law[,]
. . . [t]he function is a strictly judicial one, although exercised
in administering an executive office”). Thus, although the
MSPB and the NLRB may exercise some “executive power”
because they are housed within the Executive Branch, they do
not wield “substantial executive power.” Cf. City of Arlington
v. FCC, 569 U.S. 290, 304 n.4 (2013) (noting that when
agencies “conduct adjudications,” their activities take “judicial
forms,” yet “they are exercises of — indeed, under our
constitutional structure they must be exercises of — the
executive power” (cleaned up) (emphasis in original)).
In sum, the MSPB and the NLRB fall safely within
Humphrey’s exception to the President’s at-will removal
authority. Both agencies have nonpartisan multimember
leadership structures that allow every President to select at least
some of their members. See Humphrey’s, 295 U.S. at 625–26
(noting that the 1935 FTC was “independent of executive
authority, except in its selection” of commissioners). They also
conduct apolitical adjudicatory work that requires
independence and expertise; and they receive their funding
through the normal appropriations process. At bottom, they are
traditional multimember expert agencies that wield less
executive power than did the 1935 FTC, and they therefore do
not wield “substantial executive power.”
If the meaning of “substantial executive power” has
changed since Seila Law was decided, or if it is different from
what was approved in Humphrey’s, or if there is no longer a
test of “substantial” power at all, the Supreme Court must tell
us so. See Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490
U.S. 477, 484 (1989). We should follow the lead of other
courts of appeals and our own en banc court, which have

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determined that Humphrey’s remains good law, despite the
parts of Seila Law that have been perceived to undermine its
reasoning. See Harris III, 2025 WL 1021435, at *1; Meta
Platforms, Inc. v. FTC, No. 24-5054, 2024 WL 1549732, at *2
(D.C. Cir. Mar. 29, 2024) (per curiam); Severino v. Biden, 71
F.4th 1038, 1047 (D.C. Cir. 2023); Leachco, Inc. v. Consumer
Prod. Safety Comm’n, 103 F.4th 748, 762–63 (10th Cir. 2024);
Consumers’ Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th
342, 346 (5th Cir. 2024). Humphrey’s and Wiener require us
to affirm the judgments entered by the district court. In the
alternative, we should hold these cases in abeyance and await
further instructions from the Supreme Court in Slaughter.
B. Departing from Existing Precedents
My colleagues break new ground in determining the type
and extent of executive power that must be controlled by the
President through the tool of at-will removal. Although Seila
Law recognized an exception to the President’s at-will removal
authority for “multimember expert agencies that do not wield
substantial executive power,” 591 U.S. at 218, my colleagues
essentially eliminate that exception by redefining what counts
as “substantial executive power.” They apply that term so
broadly that it encompasses the work of even adjudicatory
agencies that have little or nothing to do with traditional
executive functions. While my colleagues’ analysis is steeped
in details about the powers of the agencies at issue, and how
those powers compare with the responsibilities of the 1935
FTC, the bottom line is this: If the Constitution cannot tolerate
the independence of the purely adjudicatory MSPB, which
functions as a court in the specialized realm of employment
law, there is no agency that can escape total presidential
control. My colleagues hold, in substance, that the existence
of independent agencies is incompatible with our Constitution.

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The government reaches the same end point — the
elimination of independent agencies — by taking a different
route. The government urges the more direct approach of
replacing the Supreme Court’s test of “substantial executive
power” with a new standard that gives the President total
control over agencies that wield “any executive power.” The
government claims that all Executive Branch entities wield
executive power, and any executive power must be supervised
by the President through at-will removal, because the
Constitution vests all executive power in him. Thus, because
independent agencies are within the Executive Branch, the
President must have total control over them, and there are no
constitutionally permissible independent agencies.
The government’s position is based on a new, maximalist
version of the “unitary executive theory.” Although that theory
stands for the proposition that all executive power must be
placed in the hands of the President, no court has ever applied
it to abolish all independent agencies. The government claims
that there can be no exceptions to the President’s general at-
will removal authority because at-will removal assures that
agencies are accountable to the people: According to the
government, voters elected the President and would want him
to direct all the affairs of the Executive Branch. Other methods
of presidential control — such as the appointment of agency
leaders, for-cause removal, and the appropriations
process — are considered insufficient.
Under the government’s maximalist theory, our duly
elected representatives in Congress who determined that
independent agencies serve the public interest were powerless
to do what they thought was best for the nation. Instead, the
government has suddenly realized, the Constitution requires us
to eradicate the independence of all Executive Branch
agencies. The government takes that position even though the

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Founders approved a commission with members who were not
subject to the President’s at-will removal (the Sinking Fund
Commission) in 1790; multimember expert agencies have
existed since the ICC was established in 1877; and independent
agencies with certain features — including multimember
structures, bipartisanship, and the task of applying expertise to
address nonpolitical issues — were upheld by the Supreme
Court in Humphrey’s and left intact by Seila Law.
Given our long-standing acceptance of some agency
independence in our constitutional scheme, we should view
with suspicion the government’s insistence that an immediate,
drastic change to our government is necessary. Over the 138
years in which expert independent agencies have operated
within our constitutional system, our nation has not perceptibly
experienced any harms from the asserted lack of sufficient
political accountability.13 I am concerned that our implicit
adoption of the government’s radical view of executive
authority will enable the President to claim and consolidate too
much power, and that will cause the public to lose faith in the
impartiality of the judiciary. It may be difficult to persuade
members of the public that the Constitution really requires that
all appointments and decisions made within the Executive
Branch be political, when that has never been the country’s
experience or understanding.
13 When the government was asked at oral argument to explain
how our country has been tangibly harmed by the alleged widespread
constitutional problem posed by agency independence, it had no real
response. Government counsel spoke of “the blurring of the lines of
accountability” and “disabl[ing] the will of the people” — but he
could identify no actual detriment to the functioning of our
government and its ability to serve the public. Oral Arg. 8:23–24,
11:20–21.

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The implicit or explicit adoption of a constitutional theory
that effectively outlaws independent agencies will have
profound effects on the governance of our nation. It threatens
to impair the work of approximately thirty-three agencies that
Congress has entrusted with important, apolitical missions, like
promoting public safety,14 facilitating commerce,15 serving the
legal system,16 helping the disadvantaged,17 protecting
14 The National Transportation Safety Board (49 U.S.C.
§ 1111(c)), the Occupational Safety and Health Review Commission
(29 U.S.C. § 661(b)), the Consumer Product Safety Commission (15
U.S.C. § 2053(a)), the National Advisory Council on the National
Health Service Corps (42 U.S.C. §254j(b)(1)), the Federal Mine
Safety and Health Review Commission (30 U.S.C. § 823(b)(1)(B)),
the Institute of Peace (22 U.S.C. § 4605(f)), the Chemical Safety and
Hazard Investigation Board (42 U.S.C. § 7412(r)(6)(B)), and the
Federal Aerospace Management Advisory Council (49 U.S.C.
§ 106(p)(6)(E)).
15 The Federal Trade Commission (15 U.S.C. § 41), the Federal
Maritime Commission (46 U.S.C. § 46101(b)(5)), the Postal Service
(39 U.S.C. § 202(a)(1)), the Postal Regulatory Commission (39
U.S.C. § 502(a)), the National Indian Gaming Commission (25
U.S.C. § 2704(b)(6)), the Surface Transportation Board (49 U.S.C.
§ 1301(b)(3)), the Corporation for Travel Promotion (22 U.S.C.
§ 2131(b)(2)(D)), and the Financial Oversight and Management
Board for Puerto Rico (48 U.S.C. § 2121(e)(5)(B)).
16 The Sentencing Commission (28 U.S.C. § 991(a)), the State
Justice Institute (42 U.S.C. § 10703(h)), the Civilian Board of
Contract Appeals (41 U.S.C. § 7105(b)(3)), and the Foreign Claims
Settlement Commission (22 U.S.C. §§ 1622(c), 1622b).
17 The Commission on Civil Rights (42 U.S.C. § 1975(e)) and the
Legal Services Corporation (42 U.S.C. § 2996c(e)).

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workers,18 harnessing energy or natural resources,19 and
serving members of the military and veterans.20 Under the
government’s theory, judges who serve on Article I courts —
such as the Tax Court, the Court of Appeals for the Armed
Forces, and the Court of Appeals for Veterans Claims — also
may be subject to at-will removal because those courts are
situated within the Executive Branch and therefore exercise
some executive power. See Kuretski v. Comm’r, 755 F.3d 929,
943 (D.C. Cir. 2014) (holding that “the Tax Court exercises its
authority as part of the Executive Branch”); Edmond v. United
States, 520 U.S. 651, 664 (1997) (recognizing that the Court of
Appeals for the Armed Forces is an “Executive Branch
entity”); United States v. Arthrex, Inc., 594 U.S. 1, 20 (2021)
(describing the Court of Appeals for Veterans Claims as “an
Executive Branch entity”).
Although the government currently does not take the
position that Article I judges and Federal Reserve officials are
subject to at-will removal by the President, those arbitrary
carve-outs provide little reassurance — adoption of the
maximalist theory would allow the government to change its
mind whenever it becomes politically expedient. The
18 The National Labor Relations Board (29 U.S.C. §153(a)), the
Merit Systems Protection Board (5 U.S.C. § 1202(d)), the National
Mediation Board (45 U.S.C. § 154), the Federal Labor Relations
Authority (5 U.S.C. § 7104(b)), the Foreign Service Labor Relations
Board (22 U.S.C. § 4106(e)), and the Foreign Service Grievance
Board (22 U.S.C. § 4135(d)).
19 The Nuclear Regulatory Commission (42 U.S.C. § 5841(e)), the
Regional Fishery Management Councils (16 U.S.C. § 1852(b)(6)),
and the Federal Energy Regulatory Commission (42 U.S.C.
§ 7171(b)(1)).
20 The Department of Defense: Medicare-Eligible Retiree Health
Care Board of Actuaries (10 U.S.C. § 1114(a)(2)(A)) and the
Department of Defense: Board of Actuaries (10 U.S.C. § 183(b)(3)).

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government’s theory also puts at risk inferior officers and
career civil servants employed by the Executive Branch: If the
Constitution entitles the President to exercise at-will removal
authority over all parties who wield any executive power, then
previously approved statutory protections for such employees
may well be unconstitutional. See Brief for the Petitioners at
20, Slaughter, No. 25-332 (Oct. 10, 2025) (describing a
previously recognized exception for inferior officers as
“dubious”). Thus, we may soon be living in a world in which
every hiring decision and action by any government agency
will be influenced by politics, with little regard for subject-
matter expertise, the public good, and merit-based decision-
making. Indeed, “[t]he power to remove government officials
and replace them with the chief executive’s preferred people
provides a powerful weapon to convert the government from
an instrument of law into the instrument of an autocratic chief
executive” — “[a] President can simply fire conscientious
people and seek to replace them with quislings willing to do his
bidding.” David M. Driesen, The Unitary Executive Theory in
Comparative Context, 72 Hastings L.J. 1, 42 (2020).
The impending upheaval is not required by our
Constitution, the Supreme Court’s precedents, or the unitary
executive theory. The Constitution unquestionably empowers
Congress to organize and structure the Executive Branch, and
the Constitution’s text and structure indicate that Congress’s
creation of independent agencies is within constitutional
bounds. Moreover, the Supreme Court has been careful, thus
far, to preserve the viability of independent multileader expert
agencies. See Seila Law, 591 U.S. at 216–18; Humphrey’s, 295
U.S. at 632. And that is consistent with the Court’s recognition
of a strong unitary executive. Under the Court’s precedents,
the President must be able to remove “purely executive”
officials, Humphrey’s, 295 U.S. at 631–32; see also Morrison,
487 U.S. at 689–90, as well as leaders of single-headed

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agencies exercising executive power, Collins, 594 U.S. at 253–
54, and even leaders of multileader agencies that wield
“substantial executive power,” Seila Law, 591 U.S. at 218.
Eliminating agency independence altogether goes far beyond
what the unitary executive theory requires.
In sum, both the government’s theory and my colleagues’
analysis have the practical effect of outlawing independent
agencies in this country. In my view, the government and my
colleagues misread the Constitution and all the cases that have
come before.
1. The Unitary Executive Theory
As the Supreme Court explained in Seila Law, “[u]nder
our Constitution, the ‘executive Power’ — all of it — is ‘vested
in a President,’ who must ‘take Care that the Laws be faithfully
executed.’” 591 U.S. at 203 (quoting U.S. Const. art. II, §§ 1,
3). Rather than divide the power of the Executive Branch
among multiple actors, the Framers concentrated all its power
in a single President who would be “directly accountable to the
people through regular elections.” Id. at 224. To ensure that
Executive Branch officers also answer to the people, such
officers generally “must remain accountable to the President”
through the President’s power of at-will removal. Id. at 204,
213, 224. In addition, for the President to faithfully execute the
laws, he must effectively supervise those who assist him in
carrying out the functions of the Executive Branch, which also
necessitates the general power to remove principal officers who
lead Executive Branch agencies. See id. at 214.
The underlying premise of the unitary executive theory is
that the President alone is responsible for exercising all
executive power, and he therefore must have the right to
control (and remove) agency leaders who assist him in doing

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the work of the Executive Branch. That idea is uncontroversial
as applied to the many agencies that perform core executive
functions on the President’s behalf. Core executive functions
include powers related to the national defense, foreign affairs,
and law enforcement. See Nixon v. Fitzgerald, 457 U.S. 731,
750 (1982) (noting that Article II “establishes the President as
the chief constitutional officer of the Executive Branch,
entrusted with supervisory and policy responsibilities of utmost
discretion and sensitivity,” including “the enforcement of
federal law[,] . . . the conduct of foreign affairs[,] . . . and
management of the Executive Branch”). The Constitution
plainly requires the President to have unfettered power to
remove the leaders of agencies like the Defense Department,
the State Department, and the Justice Department. See
Morrison, 487 U.S. at 690 (“Myers was undoubtedly
correct . . . in its broader suggestion that there are some ‘purely
executive’ officials who must be removable by the President at
will if he is to be able to accomplish his constitutional role.”
(quoting Myers v. United States, 272 U.S. 52, 132–34 (1926))).
But there is a continuum of government functions, and not
all such functions must be treated in the same way. Walter
Dellinger, when he headed the Office of Legal Counsel,
identified a “spectrum” of executive power: “[A]t one end of
the spectrum, restrictions on the President’s power to remove
officers with broad policy responsibilities in areas Congress
does not or cannot shelter from presidential policy control,”
such as the Secretary of Defense, “clearly should be deemed
unconstitutional.” The Constitutional Separation of Powers
Between the President and Congress, 20 Op. O.L.C. 124, 169
(1996). But “[a]t the other end of the spectrum,” “officers with
adjudicatory duties affecting the rights of private
individuals” — such as judges appointed to serve on Article I
courts — should not be subject to at-will removal because “the
contention that the essential role of the executive branch would

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be imperiled by giving a measure of independence to such
officials is untenable under both precedent and principle.” Id.
The spectrum described by Dellinger recognizes that there is a
correlation between the amount of executive power that an
agency exercises and the amount of presidential oversight that
is constitutionally required. The immediate questions here are,
“Where do the MSPB and the NLRB fall on that spectrum of
executive power?” and ultimately, “May Congress
constitutionally create a category of agencies that need not be
placed under the President’s total control because their
functions do not interfere with or sufficiently implicate the
President’s exercise of executive power?”
Seila Law established just five years ago that the test for
constitutionally permissible independence is whether a
multileader expert agency exercises “substantial executive
power.” 591 U.S. at 218; see also Wilcox, 145 S. Ct. at 1416
(referencing “considerable executive power”). Because the
degree of necessary presidential supervision is commensurate
with the amount of executive power that an agency wields,
multimember agencies that do not exercise “substantial
executive power” may enjoy for-cause removal protections
because the President influences such agencies in less intrusive
ways that nevertheless preserve “the President’s ability to
perform his constitutional duty.” Morrison, 487 U.S. at 691;
see also Lisa Schultz Bressman & Robert B. Thompson, The
Future of Agency Independence, 63 Vand. L. Rev. 599, 632
(2010) (noting that independent agencies “are subject to other,
well-recognized measures of presidential influence that better
promote accountability”).
For instance, the President influences the MSPB and the
NLRB by appointing at least some of their members, see 5
U.S.C. § 1201 (MSPB); 29 U.S.C. § 153(a) (NLRB), and by
choosing their chairpersons, see 5 U.S.C. § 1203(a) (MSPB);

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29 U.S.C. § 153(a) (NLRB); see also Humphrey’s, 295 U.S. at
625 (noting that the FTC would “be independent of executive
authority, except in its selection”). The President also may
ensure that agency leadership is competent and ethical by
removing, or threatening to remove, an agency leader for cause.
See 5 U.S.C. § 1202(d) (MSPB); 29 U.S.C. § 153(a) (NLRB).
Moreover, these multileader independent agencies answer to
both Congress and the President through the appropriations
process, in which the President and Congress together
determine the agencies’ funding levels. Independent agencies
also are held accountable by Congress’s power to enact laws,
signed by the President, that can affect the agencies’ authority
and operations. Finally, the President exercises significant
control over the MSPB and the NLRB by overseeing many of
the cases that are brought before them, through his power to
appoint and remove the General Counsel of the NLRB and the
Special Counsel. Thus, the MSPB and the NLRB are
completely unlike the independent agencies that the Supreme
Court has deemed insufficiently accountable, due to features
like a single-head leadership structure, double layers of
accountability, or insulation from the normal appropriations
process. See Free Enter. Fund, 561 U.S. at 484; Seila Law, 591
U.S. at 225–26; Collins, 594 U.S. at 228. Instead, numerous
checks on the MSPB and the NLRB ensure that they remain
accountable to the President, the Congress, and the American
people, even if the President does not have at-will removal
authority.
Congress’s creation of independent multileader expert
agencies is consistent with the unitary executive theory.
Although Article II vests executive power in the President,
Article I commands that Congress “shall have Power To . . .
make all Laws which shall be necessary and proper for carrying
into Execution . . . all . . . Powers vested by this Constitution in
the Government of the United States, or in any Department or

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Officer thereof.” U.S. Const. art. I, § 8. Thus, “[u]nitary
executive theorists concede that Congress has broad power
under the Necessary and Proper Clause to structure the
executive department.” Steven G. Calabresi & Kevin H.
Rhodes, The Structural Constitution: Unitary Executive,
Plural Judiciary, 105 Harv. L. Rev. 1153, 1165–68 (1992); see
also Michael W. McConnell, The President Who Would Not Be
King 146 (2020) (The Take Care Clause and the Commander-
in-Chief Clause “place the President at the head of a
hierarchical system, the substance of which is entirely within
congressional control.”). Indeed, it is “natural” to conclude
that the Necessary and Proper Clause lets Congress make
“judgment calls” about the removal of executive officers “as it
enacts particular statutes that structure particular agencies.”
Caleb Nelson, Special Feature: Must Administrative Officers
Serve at the President’s Pleasure?, Democracy Project 2025
(Sept. 29, 2025), https://perma.cc/758B-ZCTS. Even the
strongest formulations of the unitary executive theory have
recognized narrow “exceptions” to the general rule that the
President is entitled to remove principal officers who wield
executive power. Seila Law, 591 U.S. at 204; Wilcox, 145 S.
Ct. at 1416 (“Because the Constitution vests the executive
power in the President, he may remove without cause executive
officers who exercise that power on his behalf, subject to
narrow exceptions recognized by our precedents.” (citations
omitted)).
The current exception to the general rule of at-will removal
for independent multimember executive agencies is
appropriate because such agencies do not threaten the
President’s leadership of the Executive Branch: They wield
limited executive power, and the President can adequately
supervise them using methods other than at-will removal. In
particular, a strong unitary executive can coexist with an
independent MSPB and NLRB, as created by Congress,

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because those agencies: (1) are predominantly adjudicatory and
therefore do not exercise substantial executive power;
(2) specialize in resolving labor and employment disputes, and
therefore have nothing to do with the President’s core
executive responsibilities; and (3) are accountable to the
President through his selection of agency leadership, the
appropriations and legislative processes, and his influence over
the agencies’ dockets of cases. Thus, the President remains
strong and in command of the Executive Branch,
notwithstanding the existence of these independent agencies.
In short, the unitary executive is compatible with the
independence of nonpartisan multimember expert agencies that
are (1) “neither political nor executive,” (2) “charged with the
enforcement of no policy except the policy of the law,” and
(3) “independent of executive authority, except in [their]
selection.” Humphrey’s, 295 U.S. at 624–26. That
compatibility is especially evident where the agencies in
question are predominantly adjudicatory and quasi-judicial,
therefore falling near the end of the executive-power spectrum
occupied by courts of law. The Supreme Court has allowed
traditional independent agencies to exist for at least ninety
years and has approved their independence while at the same
time recognizing a strong unitary executive. See Free Enter.
Fund, 561 U.S. at 483 (explaining that Article II “has been
understood to empower the President to keep [Executive
Branch] officers accountable — by removing them from office,
if necessary,” but also holding, under Humphrey’s, “that
Congress can, under certain circumstances, create independent
agencies run by principal officers appointed by the President,
whom the President may not remove at will but only for good
cause”); Seila Law, 591 U.S. at 203–04 (noting that “the
executive power — all of it — is vested in a President,” but
also acknowledging that, under Humphrey’s, “Congress could
create expert agencies led by a group of principal officers

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removable by the President only for good cause” (cleaned up)).
Thus, the unitary executive theory does not require us to
eliminate all independent multimember expert agencies.
2. The Maximalist Unitary Executive
The government urges us to adopt a new, maximalist
formulation of the unitary executive theory that entitles the
President to assert total control over all agencies that wield any
executive power, without exception — and that control
logically must extend to every agency, court, or entity within
the Executive Branch. The President’s mandatory control must
be effectuated, according to the government, through at-will
removal power over all the leaders of Executive Branch
entities, including those that previously have been independent.
The government’s maximalist theory that places “any
executive power” under absolute presidential control is a sharp
departure from the Supreme Court’s recognition of an
exception “for multimember expert agencies that do not wield
substantial executive power.” Seila Law, 591 U.S. at 216, 218
(emphases added); see also Wilcox, 145 S. Ct. at 1415
(referencing “considerable executive power” (emphasis
added)). Yet the government contends that its new maximalist
theory is not just better than the alternative, but that the
Constitution commands our sudden acceptance of it, despite
138 years of our nation’s contrary practice and understanding.
My colleagues do not explicitly embrace the government’s
reasoning, but they de facto agree with the underlying premise
of total executive control that leaves no room for political
independence. Their view that even the MSPB — a purely
adjudicatory agency that functions as an employment-law court
— wields “substantial executive power” unmistakably implies
that no Executive Branch agencies can remain independent.

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My colleagues thus adopt their own theory of maximalist
executive authority.
In considering the approaches advocated by the
government and my colleagues, it is beyond debate that the
President is entitled to control and to supervise the executive
power of the federal government, which “generally” entitles
him to remove principal Executive Branch officials at his
discretion. See Seila Law, 591 U.S. at 213; accord Free Enter.
Fund, 561 U.S. at 513–14. The question before us is whether
the Constitution prohibits any exception to the general rule of
at-will removal. And the available evidence indicates that the
Constitution does not compel such an interpretation. See Caleb
Nelson, supra (“[B]oth the text and history of Article II are far
more equivocal than the current [Supreme] Court has been
suggesting.”). To the contrary, we should reject any theory that
requires the abolition of independent agencies because that
drastic action (1) is unsupported by constitutional text,
structure, and original intent; and (2) violates the separation of
powers.
i. Constitutional Text, Structure, and Original Intent
The Constitution does not specifically address the removal
of officers in the Executive Branch, other than by providing for
impeachment under certain circumstances. But the Necessary
and Proper Clause of Article I empowers Congress “[t]o make
all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers [of Congress], and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” U.S.
Const. art. I, § 8. That broad authority allows Congress to
create and structure government agencies, and it is “natural” to
conclude that Congress can make “judgment calls” about the
removal of officers “as it enacts particular statutes that

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structure particular agencies.” Caleb Nelson, supra. The right
of removal is not inherent to the executive power because that
power “entails executing laws . . . , such as statutes enacted by
Congress,” and the President is “not in charge of the content of
those laws.” Id. Moreover, “neither the Vesting Clause nor
anything else in Article II compels the inference that after
officers have been duly appointed, and after the President has
issued the commissions that the Constitution requires, the
President must be able to terminate the appointments and
rescind the commissions at will . . . .” Id. Thus, nothing in the
Constitution’s text supports the government’s claim that the
President’s general removal power must be absolute and cannot
be subject to exceptions.
Importantly, the Framers assumed that the President would
not necessarily have the right to remove Executive Branch
officials. In 1790, the First Congress established the Sinking
Fund Commission to repay the country’s Revolutionary War
debt. The members of the Commission were “the President of
the Senate [i.e., the Vice President], the Chief Justice, the
Secretary of State, the Secretary of the Treasury, and the
Attorney General.” Act of Aug. 12, 1790, ch. 47, § 2, 1 Stat.
186, 186; see also Chabot, supra note 1, at 39–40. The Vice
President — who at that time, before the Twelfth Amendment,
was the runner-up from the last presidential election rather than
the President’s running mate — and the Chief Justice were not
subject to removal by the President, thus insulating the
Commission from complete presidential control. Chabot,
supra note 1, at 41. Alexander Hamilton proposed the
Commission, the First Congress passed legislation that
established it, and President George Washington signed the law
— all of which would be surprising if the Commission’s
independent structure violated the very Constitution that those
people had just forged. See id. at 42–43.

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Nor was the Sinking Fund Commission an anomaly. See
Christine Kexel Chabot, Interring the Unitary Executive, 98
Notre Dame L. Rev. 129, 133 (2022) (documenting how the
First Congress “repeatedly enabled independent exercises of
significant executive power that fell outside of the President’s
complete control and removal power”). Congress restricted the
President’s removal authority over the heads of the First (1791)
and Second (1816) Banks of the United States, the judges of
the Court of Claims (1855), and the Comptroller of the
Currency (1863). Harris II, 2025 WL 980278, at *37 (Millett,
J., dissenting). Even the government concedes that the “early
Congresses . . . provided that the Banks of the United States —
like the Federal Reserve — would have a degree of insulation
from the President’s control.” Gov’t Reply 15. Indeed, James
Madison himself, speaking from the House floor, attested in
1789 that “because Congress may establish [executive] offices
by law . . . , most certainly it is in the discretion of the
Legislature to say upon what terms the office shall be held,
either during good behaviour or during pleasure.” 1 Annals of
Cong. 374–75 (1789).
Although it is true that the First Congress voted to give the
President plenary removal power over the Secretary of Foreign
Affairs in 1789, the import of that event is debatable. It is
unclear whether the President’s removal authority in that
instance was seen as granted by Congress or required by the
Constitution. Compare Lawrence Lessig & Cass R. Sunstein,
The President and the Administration, 94 Colum. L. Rev. 1,
25–29 (1994), with Saikrishna Prakash, New Light on the
Decision of 1789, 91 Cornell L. Rev. 1021, 1021 (2006).
Moreover, the First Congress’s confirmation that the President
has conclusive authority to remove the Secretary of Foreign
Affairs — a purely executive official exercising core Article II
powers — does not establish that the President necessarily
must have at-will removal authority over all other agency

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leaders in the Executive Branch, including those who do not
wield substantial executive power.
In sum, a search for evidence that the Constitution compels
us to accept a maximalist interpretation of executive power
comes up short. The government’s theory that “the President
must have full control over each and every exercise of
‘executive’ power by the federal government (including an
unlimitable ability to remove all or almost all executive officers
for reasons good or bad)” gives the President “more power than
any member of the founding generation could have
anticipated.” Caleb Nelson, supra.
ii. The Separation of Powers
The government posits that the Constitution tolerates no
exceptions to the President’s at-will removal authority because
the President is answerable to the people, while unelected
agency heads are not. See Oral Arg. 4:14–9:24. Thus, the
foundation of the government’s maximalist theory of executive
power is political accountability. And the government claims
that a departure from “Article II’s design . . . inflicts a
constitutional harm on the country.” Id. at 4:53–57. But once
we accept that the President generally is entitled to remove
Executive Branch officials who wield executive power, the
government’s theory does not effectively explain why there can
be no exceptions to the general rule, especially where
precedents recognize such exceptions. We must bear in mind
that Congress duly enacted the for-cause removal statutes at
issue, with the consent of the Presidents who signed the
legislation in question.
Congress is “the branch of our Government most
responsive to the popular will.” Indus. Union Dep’t, AFL-CIO
v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist,

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J., concurring in the judgment). A first-term President faces
voters only when he is running for reelection after four years in
office, while a second-term President is not checked by the
ballot box at all. But every member of the House and one third
of Senators go before their constituents every two years. See
U.S. Const. art. I, §§ 2, 3. And while the President may act
unilaterally and privately, members of Congress deliberate and
vote collectively and transparently. They are also closer to
their voters: “Elected representatives solicit the views of their
constituents, listen to their complaints and requests, and make
a great effort to accommodate their concerns.” Biden v.
Missouri, 595 U.S. 87, 105 (2022) (Alito, J., dissenting).
Accordingly, “[a] statute enacted by Congress expresses the
will of the people of the United States in the most solemn
form.” United States v. Lee Yen Tai, 185 U.S. 213, 222 (1902).
Respect for democracy, therefore, requires respect for the
policy decisions of “those popularly chosen to legislate.” Felix
Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum. L Rev. 527, 545 (1947). And because we owe “[d]ue
respect for the decisions of a coordinate branch of
Government,” we must review acts of Congress with a
“presumption of constitutionality.” United States v. Morrison,
529 U.S. 598, 607 (2000). Unelected judges do not uphold the
ideals of democracy and political accountability when they
overturn laws that were passed by the people’s representatives.
To the extent the goals of the President and Congress are
in tension here, the President’s power is at its “lowest ebb.”
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
637 (1952) (Jackson, J., concurring). Where a President defies
a law duly enacted by Congress, such a “[p]residential claim to
a power at once so conclusive and preclusive must be
scrutinized with caution, for what is at stake is the equilibrium
established by our constitutional system.” Id. at 638. Indeed,
the example that Justice Jackson used to illustrate the

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President’s relative weakness in the face of contrary
congressional intent was Humphrey’s Executor: “President
Roosevelt’s effort to remove a Federal Trade Commissioner
was found to be contrary to the policy of Congress and
impinging upon an area of congressional control, and so his
removal power was cut down accordingly.” Id. at 638 n.4. It
bears emphasis that Justice Jackson observed in Youngstown,
the Court’s iconic decision on the separation of powers, that
statutory for-cause removal restrictions fall within “an area of
congressional control” — i.e., Congress’s prerogative to
structure the Executive Branch. Id.
In the cases before us, “the equilibrium established by our
constitutional system” is indeed at stake. Youngstown, 343
U.S. at 638 (Jackson, J., concurring). My colleagues’ implicit
and substantial adoption of the government’s maximalist view
of the unitary executive will allow the President to seize power
that Congress did not intend for him to have, and thus will
aggrandize the Executive Branch at the expense of the
Legislative Branch. The “concentration of [so much] power in
the hands of a single branch is a threat to liberty.” Clinton v.
City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J.,
concurring). As Justice Brandeis put it, “[t]he doctrine of the
separation of powers was adopted by the convention of 1787
not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction, but, by
means of the inevitable friction incident to the distribution of
the governmental powers among three departments, to save the
people from autocracy.” Myers, 272 U.S. at 293 (Brandeis, J.,
dissenting); see also Gundy v. United States, 588 U.S. 128, 169
(2019) (Gorsuch, J., dissenting) (warning against
“accelerat[ing] the flight of power from the legislative to the
executive branch, turning the latter into a vortex of authority
that was constitutionally reserved for the people’s
representatives in order to protect their liberties”). In the face

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of an attempted power grab that will transform our country, the
role of the courts is to prevent undue concentration of power,
not guarantee it.
III.
The government argues that the district court had no
authority to “reinstate” Harris and Wilcox, whether through
declaratory or injunctive relief. Gov’t Br. 39. I disagree.
The district court awarded substantively identical
declaratory and injunctive relief to Harris and Wilcox.21 On
appeal, the government does not contest the district court’s
authority to declare “that the removal[s] w[ere] unlawful.”
Gov’t Br. 40 n.7. Instead, it argues (1) that the “court’s
declaration[s] that [Harris and Wilcox] shall continue to
remain” members of the MSPB and the NLRB amounted to
“full reinstatement” and thus exceeded the district court’s
authority, id., and (2) that the district court lacked equitable
authority to reinstate Harris and Wilcox via injunctions against
various subordinate executive officials, id. at 38.
The Supreme Court will consider similar arguments in
Slaughter. See Question Presented, Slaughter, No. 25-332
(Sept. 22, 2025) (instructing the parties to brief “[w]hether a
federal court may prevent a person’s removal from public
office, either through relief at equity or at law”). But in the
meantime, our own precedents bind us.
We have repeatedly recognized that lower courts enjoy
equitable authority to de facto reinstate wrongfully removed
21 In the alternative, the district court noted that Harris and Wilcox
likely were entitled to mandamus relief, but it ultimately did not grant
such extraordinary relief.

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officers. See Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir.
1996) (recognizing the availability of a de facto reinstatement
remedy requiring subordinate executive officials to “treat[]
Swan as a member of the [agency] Board and allow[] him to
exercise the privileges of that office”); Severino v. Biden, 71
F.4th 1038, 1042–43 (D.C. Cir. 2023) (“We can enjoin
subordinate executive officials to reinstate a wrongly
terminated official de facto, even without a formal presidential
reappointment.” (cleaned up)); see also Harris II, 2025 WL
980278, at *44 (Millett, J., dissenting) (“Swan and Severino . . .
held that an injunction could restore someone to office de
facto.”); cf. Sampson v. Murray, 415 U.S. 61, 63 (1974) (“[T]he
District Court is not totally without authority to grant interim
injunctive relief to a discharged Government employee . . . .”).
Consistent with our precedent, the district court properly
awarded declaratory and injunctive relief to Harris and
Wilcox.22
* * *
For the reasons discussed, I would affirm the judgments of
the district court. Unlike my colleagues, I would decline the
government’s invitation to radically reshape our government.
As Justice Robert H. Jackson so eloquently stated:
The actual art of governing under our
Constitution does not and cannot conform to
judicial definitions of the power of any of its
branches based on isolated clauses or even
22 Further, it is notable that the Supreme Court has recently
declined to stay several lower-court orders reinstating federal
officials who were removed by the President. See Order, Trump v.
Cook, No. 25A312 (U.S. Oct. 1, 2025) (member of the Federal
Reserve Board); Order, Blanche v. Perlmutter, No. 25A478 (U.S.
Nov. 26, 2025) (Registrar of Copyrights).

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45
single Articles torn from context. While the
Constitution diffuses power the better to
secure liberty, it also contemplates that
practice will integrate the dispersed powers
into a workable government.
Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
Throughout our history, the Supreme Court’s precedents and
our nation’s practice and tradition have allowed independent
multimember expert agencies to operate successfully within
our constitutional system; and as a result, we have reaped the
benefits of a workable government that best serves the interests
of the American people. The government now urges an
extreme view of Article II’s Vesting Clause, torn from context:
It attempts to reduce the actual art of governing to an
uncompromising usurpation of power by the President, all in
defiance of Congress’s authority and without regard for the
public good. My colleagues’ substantial acceptance of the
government’s maximalist theory of executive power brings us
closer to autocracy, harms our nation, and violates the
separation of powers. I respectfully dissent.

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