The Supreme Court hears oral argument today in Trump v. Slaughter, (No. 25-332), to decide whether Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), should be overruled.  On Friday, the D. C. Circuit weighed in to the ongoing debate over Humphrey’s Executor just in time to add to the weekend reading of the justices’ law clerks.

President Trump fired Cathy Harris from the Merit Systems Protection Board (“MSPB”), an agency of three members appointed by the President after Senate confirmation and Gwynne Wilcox from the National Labor Relations Board (“NLRB”), an agency of five members appointed by the President after Senate confirmation.

The MSPB adjudicates disputes between federal employees and their employing agencies, resolves disputes regarding Administrative Law Judges, awards a wide range of relief, litigates in federal court, and promulgates rules.  The NLRB adjudicates unfair-labor-practice disputes, issues various remedies, litigates in federal court via its own counsel, oversees union elections, and promulgates rules.  Both agencies feature statutory for-cause removal protections. 

Without alleging that either Harris or Wilcox had given him statutory grounds for their removal, the President fired both.  Both sued, and the district court found that the statutory removal protections were constitutionally sound limits on the President’s authority under Humphrey’s Executor, 295 U.S. 602 (1935), and declared that Harris and Wilcox continued to hold their offices.  A D.C. Circuit motions panel stayed that relief at the government’s request, before the en banc court vacated the stay.  The Supreme Court then stayed the district courts’ orders but declined certiorari.  

In Harris v. Bessent, No. 25-5037, and Wilcox v. Trump, No. 25-5057 (consolidated), the D.C. Circuit reversed the district court and held that the statutory removal protections for the NLRB and the MSPB unconstitutionally restrict the President’s ability to fire its members.  

In an opinion authored by Judge Katsas and joined by Judge Walker, the D.C. Circuit framed the question on appeal as whether Humphrey’s Executor applied to the NLRB and MSPB.  The court first noted two developments in separation-of-powers jurisprudence since Humphrey’s Executor that cast doubt on both its breadth and its continued validity: (1) the Supreme Court now interprets agency enforcement, rulemaking, and administrative adjudication as part of the “executive Power”; and (2) the Supreme Court has clarified that the Constitution permits Congress to give agencies executive power, which is subject to presidential control, but not legislative or judicial powers. 

Judge Katsas analyzed Humphrey’s Executor to determine what powers the Supreme Court considered “quasi-legislative” or “quasi-judicial” in 1935.  In Humphrey’s Executor, the agency’s “quasi-legislative” powers included performing research and making recommendations to Congress, while “quasi-judicial” powers included serving as a trial master or an adjudicator without any policymaking authority.  The D.C. Circuit found the powers of the NLRB and the MSPB much different than those of the Federal Trade Commission in 1935.  The NLRB can promulgate broad rules, create policy via adjudications (rather than simply adjudicating “according to law”), award broad remedies, litigate, and exercise substantial executive power when administering collective bargaining and union elections. The MSPB can promulgate rules, adjudicate more broadly than the FTC could in 1935, award broad remedies, and litigate.  Because these powers are not solely “quasi-legislative” or “quasi-judicial,” the limitations on the President’s removal authority allowed in Humphrey’s Executor don’t apply to the NLRB and the MSPB, and Congress cannot restrict the President’s ability to remove their members. 

Judge Pan dissented, arguing that the NLRB and MSPB fall well within the exception announced in Humphrey’s Executor and recognized by the Supreme Court for decades.  She particularly emphasized the limited power of the MSPB, which must passively wait for others to initiate cases.  Judge Pan also criticized the government’s new “maximalist” unitary executive theory as inconsistent with constitutional text, history, precedent, and the separation of powers.

In US v. Arrington, No. 24-3077, the D.C. Circuit affirmed the district court’s sentencing of Arrington to a 240-month term of imprisonment.  A jury had convicted Arrington of assaulting a police officer with a deadly weapon and being a felon in possession of a stolen firearm.  The district court imposed a 240-month sentence.  Upon completion of his federal sentence, Arrington remained in prison to serve out an 11-year sentence imposed by the D. C. Superior Court for violating his parole after a conviction for armed robbery.  In 2024, Arrington appealed his federal sentence.

In an opinion written by Senior Judge Randolph and joined by Judges Childs and Garcia, the D.C. Circuit reasoned that the district court’s 240-month sentence sufficiently considered Arrington’s purported rehabilitation while in prison (which may support a downward departure from the Sentencing Guideline range) and explained its application to impose an upward variance.  The district court reasoned that an upward variance was appropriate because of the gravity of the defendant’s assault of a police officer with a car, dragging him through an intersection while attempting to evade a traffic stop, and attempt to murder the police officer by shooting him in the face at close range.  Therefore, the district court did not abuse its discretion in sentencing Arrington to 240-months.