Questioned at a tense Senate hearing in December about his push to have comedian Jimmy Kimmel fired by ABC, FCC Chairman Brendan Carr volunteered that the FCC was not an independent federal agency. That claim conflicted both with Carr’s own April 2021 news release and with the FCC’s website. But in removing the “independent” moniker from the website only hours after his testimony concluded, Carr wasn’t wrong. At least not if one measures an agency’s independence by statutory limitations on a President’s ability to fire its members. That’s because there is no such restriction on firing FCC members.

In this respect, the FCC stands apart from what the President derisively refers to as other “so-called independent regulatory agencies.” By statute, Commissioners and board members at agencies like the Securities and Exchange Commission, Federal Trade Commission, National Labor Relations Board, Federal Energy Regulatory Commission, Equal Employment Opportunity Commission, Merit Systems Protection Board, Consumer Product Safety Commission and, prominently, the Federal Reserve, may only be fired by a President for cause, i.e., for dereliction of duty, malfeasance, and the like.

But this statutory distinction between the FCC and the other agencies is not likely to matter much longer. By all accounts, the Supreme Court seems poised to reverse a ninety-year-old Supreme Court case called Humphrey’s Executor and declare these job protections unconstitutional. That means ending the existence of any independent agencies – with the possible exception of the Federal Reserve (which the Supreme Court seems bent on distinguishing).

What else does that mean beyond the loss of job security for members of these soon-to-be formerly independent agencies? A lot. And none of it is good.

Federal Agencies in a Post-Humphrey’s Executor World

President Trump has asserted authority to fire members of these independent agencies for any reason – or for no reason at all. And, since taking office he’s done it at least a dozen times, becoming the first President to fire any independent agency member in more than ninety years. Limiting his power in this area, he has argued, would unconstitutionally interfere with his exclusive authority as the nation’s Chief Executive. The first Supreme Court case to test that position involves the President’s firing of Democratic FTC Commissioner Rebecca Slaughter. If, as is widely expected, the Supreme Court sides with Trump, it won’t just affect agency member job security. Rather it will alter the bipartisan structure of these agencies and, potentially, even their ability to function at all. The first impact is readily foreseeable. The specter of the second is raised by Space Exploration Inc. v. NLRB, a recent decision by the Fifth Circuit Court of Appeals, the federal appellate court in New Orleans.

Say Goodbye to Bipartisan Boards and Commissions

Let’s start with agency structure. All of the independent agencies mentioned have two things in common. By statute – and in the NLRB’s case, by custom – (1) no more than a simple majority of the agency’s members may be from one political party and (2) those members serve fixed, staggered terms. The purpose of this structure was to create multimember bipartisan agencies whose policies would have some stability and be less influenced by partisan politics. But if for-cause removal protections are found to interfere unconstitutionally with a President’s executive power, it seems equally logical that forcing the President to nominate agency members from an opposing political party would be unconstitutional, too. After all, if a Republican President can fire all Democratic agency members, why should he be forced to nominate them in the first place?

The Ability of Formerly Independent Agencies Even to Function is Also at Risk

Without a Quorum, Multi-Member Federal Agencies Often Cannot Act

The loss of agency independence and bipartisanship is far from inconsequential. But agencies whose heads have long served at the pleasure of a President can still function – the EPA, for example, can continue to regulate polluters and the IRS can still go after tax cheats. Maybe even more important than the loss of their independence, however, is that, with the anticipated demise of Humphrey’s Executor, the very ability of formerly independent agencies to function is put at risk.

We’ve already seen that happen, at least on a temporary basis. When President Trump fired members of the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Merit Systems Protection Board (MSPB), it left each of these agencies without a working quorum. Without a quorum in place, federal workers fired without cause cannot have their claims adjudicated by the MSPB, employers can’t seek vindication against pending charges that they engaged in unfair labor practices before the NLRB, and claims of discrimination against private employers pending before the EEOC continue to languish. A President opposed to an agency’s mission could simply fire enough members of the agency to leave it without a quorum. And that status could remain indefinitely since a President has no obligation to nominate replacements. That scenario is no longer unimaginable.

Can Space X v. NLRB Logically Be Limited to Blocking NLRB Investigations?

But there are broader risks to agency functionality than the loss of a quorum. That’s the clear implication of the Fifth Circuit’s August 2025 decision in Space Exploration Corp. v. NLRB, which addresses the following question: if agencies are unconstitutionally structured, are their actions unconstitutional, too?  Most likely, said a divided panel of that court when it preliminarily enjoined the National Labor Relations Board (NLRB) from having one of its administrative law judges investigate whether Space X and two other large employers had engaged in unfair labor practices.

The Space X case dates back to 2024 when the NLRB agreed to investigate whether Space X was engaged in unfair labor practices by firing employees who had complained about Musk’s public behavior. Instead of defending against the charges, Musk’s company convinced a federal district court in Texas to issue a preliminary injunction, blocking the investigation altogether on grounds that the agency was unlawfully structured.

Its successful argument? Even before the Supreme Court likely pulls down the curtain on the Humphrey’s Executor era, Space X had maintained that the statutory job protections of NLRB board members weren’t covered by the Humphrey’s Executor precedent. The NLRB, it noted, has more executive functions than the FTC had in 1935 and, unlike the FTC, the NLRA doesn’t expressly require that the agency be bipartisan. The district court agreed that Space X was likely to prevail on this point and that forcing Space X to face an unlawful investigation would constitute irreparable harm. Over the NLRB’s objection, the Fifth Circuit affirmed the ruling together with similar rulings by two other district court judges in Texas.

The court’s opinion logically implicates more than the NLRB’s ability to conduct investigations of possible unfair labor practices.  The court’s rationale can readily be invoked by attorneys to block other agency actions their clients don’t like. Even before the Fifth Circuit ruled, an energy trader, citing the dismissal protections given to members of the Federal Energy Regulatory Commission, brought suit in a North Carolina federal district court last January to stop FERC’s investigation into its energy trading practices.  That case is still pending. But it is easy to imagine companies bringing similar cases in Texas, Mississippi, and Louisiana federal courts against other agencies.

Members of the Equal Employment Opportunity Commission, for instance, also have protections against arbitrary dismissal. After the Space X decision, there’s nothing to stop an employer facing an EEOC investigation into claims that it has failed to promote any of its women employees from suing the EEOC to stop the investigation. Similarly, a company facing allegations that it has been part of a price-rigging scheme could go to court to prevent the Federal Trade Commission from acting. Insider trading cases by the Securities and Exchange Commission could also meet the same fate. Rulemakings, which by definition have nationwide impact, would also be targets.

District Courts in the Fifth Circuit Will Become Destinations for Parties Seeking to Halt “Independent” Agency Actions

To be sure, the appellate court’s decision was also only temporary. Having granted a preliminary injunction, the court was explicit in saying only that the companies were likely to succeed on the merits and that in the absence of an injunction prior to litigation they would suffer irreparable harm. Indeed, a party must show likelihood of success on the merits and irreparable harm to qualify for a preliminary injunction. But it is difficult to square the nominally tentative nature of the court’s ruling, particularly its conclusion about irreparable harm, with the real-world impacts the court’s underlying analysis is likely to create. Several facts about the case heighten this concern.

First, while nominally preliminary in nature, the court’s decision could be in effect for a long time. Citing the Supreme Court’s decision in Collins v. Yellen, the NLRB had argued that Space X faced no irreparable harm: the NLRB’s members had been lawfully appointed and did not face presidential dismissal at the time they initiated the unfair labor practice hearing process. But the Fifth Circuit, in contradiction to three other circuits, ruled that the Yellen decision only applied retroactively. It then illogically postponed the whole question of whether the for-cause protections given to Board members are severable from the rest of the statute. Resolving that question in favor of severability would have defeated Space X’s claim of irreparable harm – a President would be free to fire formerly independent commissioners at will. The court itself had noted that “when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” That task, it notes, “is simplified” when the statute itself contains a severability clause, as the National Labor Relations Act does.  But it nonetheless said it would not address the severability question until the constitutionality of the Act’s “for cause” provisions was definitively resolved. That could be many months from now. And if the Fifth Circuit adopts the severability analysis contained in the lower court’s preliminary injunction it affirmed, it would conclude that the for-cause provision isn’t severable from the rest of the Act.

Second, Space Exploration v. NLRB may only be a Fifth Circuit decision, but it is no longer subject to further appeals. Following the Supreme Court’s December 8, 2025 refusal to hear a labor union’s appeal of that decision (the NLRB chose not to seek Supreme Court review), Space Exploration v. NLRB is now precedent that every federal district court in Louisiana, Mississippi, and Texas must consider in similar cases. While statements of law contained in preliminary injunctions by appellate courts are not technically binding on the lower courts, they are likely to remember the rebuke the Supreme Court gave to lower court judges who believed they were not bound by that Court’s interim rulings.  “Although our interim orders are not conclusive as to the merits,” it recently advised, they “inform how a court should exercise its equitable discretion in like cases.”

Finally, while the decision only has applicability in the Fifth Circuit, there are many ways parties seeking to stop independent agencies from acting can bring their cases there. The “vast majority” of cases brought under the Administrative Procedure Act (APA) start in the federal district courts. Companies with “standing,” that is, direct stakes in an agency proceeding, need only show that they have offices or facilities in a particular federal district to bring APA cases there. And associations with members who have standing and are located in a particular district can bring APA cases there, too. By statute, decisions of a number of agencies (e.g., the Federal Communications Commission and Federal Energy Regulatory Commission) go straight to the circuit courts of appeal. There too, parties with standing may have the choice to seek judicial review in a number of circuit courts. For example, under the Federal Power Act, a party with standing may obtain review “in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business.” Where the agency action being challenged is a nationwide regulation, that opens the door to filing in any circuit where any of the affected utilities are located.

Maybe the Supreme Court will take up a future case to resolve the circuit conflict posed by the Fifth Circuit’s decision. In the meantime the authority of soon-to-be formerly independent agencies is sure to be sorely tested.

Harvey L. Reiter is Senior Counsel in the Washington, D.C. office of Stinson LLP. He is also an adjunct professor of law at George Washington University Law School, where he teaches a course on Regulated Industries. Mr. Reiter served as Executive Editor and then Editor in Chief of the Energy Law Journal from 2005-2025.