WASHINGTON — The Supreme Court on Wednesday ordered that for now President Donald Trump is not required to reinstate two members of independent federal agencies he wants to fire.
The provisional decision affects Gwynne Wilcox, a member of the National Labor Relations Board, and Cathy Harris, a member of the Merit Systems Protection Board.
Chief Justice John Roberts issued an order that temporarily blocked lower court rulings that said the two officials should be reinstated.
The court will decide what next steps to take in the case after hearing from lawyers for the two ousted officials.
Although the Supreme Court previously upheld protections against members of independent agencies being removed without cause, the current conservative majority has reversed course in recent cases affecting other agencies.
Wilcox was appointed to the body that adjudicates labor disputes by former President Joe Biden in 2021. Her five-year term would have expired in 2026. Under federal law, the president can only fire members “for neglect of duty or malfeasance in office.”
Biden appointed Harris in 2022 to a seven year term that has similar protections against removal. The Merit Systems Protection Board handles disputes involving federal employees.
Trump sought to fire both soon after taking office.
Wilcox and Harris both sued and won at the district court level. An appeals court panel initially ruled for Trump but in a later ruling in which the entire bench of judges participated reversed course on a 7-4 vote, prompting the administration to go to the Supreme Court.
In recent rulings the Supreme Court, which has a 6-3 conservative majority, has ruled that provisions protecting single heads of independent agencies were unconstitutional. But a 1935 precedent that upheld the structure of multi-member agencies remains on the books.
Conservative lawyers who favor broad presidential power have long argued that independent agencies are not sufficiently accountable to the democratically-elected president under the Constitution’s separation of powers provision. The president should be able to fire agency heads at will, they argue.
Solicitor General D. John Sauer said in court papers that because of the lower court rulings Wilcox and Harris are effectively “exercising the president’s executive power over the president’s express objection.”
Lurking in the background of any effort to overturn the 1935 ruling, Humprey’s Executor v. United States, is whether the president would have the power to fire members of the Federal Reserve, which traditionally operates independently of the White House.
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