Presidential Power to Remove NLRB and MSPB Members Without Cause

Few legal questions can turn a sleepy federal agency into the star of a constitutional drama quite like this one: Can a president remove members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) without cause?

At first glance, that sounds like a question designed to make dinner guests suddenly remember they left the oven on. But the issue matters far beyond Washington. The NLRB affects union elections, workplace disputes, and unfair labor practice cases. The MSPB affects federal employees, whistleblowers, disciplinary appeals, and the merit-based civil service. When those boards lose members, they can lose the ability to decide cases. That is not just a constitutional theory exercise; it can affect real workers, employers, agencies, and government operations.

The debate sits at the intersection of presidential authority, congressional power, agency independence, and the Constitution’s separation of powers. In plain English: Who gets the final say over independent agenciesthe president, Congress, or the courts? The answer is becoming more complicated, more consequential, and, naturally, more litigated.

What Are the NLRB and MSPB?

The National Labor Relations Board is an independent federal agency that administers and enforces major parts of the National Labor Relations Act. It handles disputes involving private-sector workers, unions, and employers, including allegations of unfair labor practices and questions about union representation. The NLRB’s five-member Board reviews cases and issues decisions that can shape labor law across the country.

The Merit Systems Protection Board serves a different audience: federal employees. It hears appeals involving certain adverse employment actions, such as removals, suspensions, reductions in grade or pay, and other personnel disputes. It also helps enforce merit-system principles and review allegations involving prohibited personnel practices. In short, the MSPB is part referee, part watchdog, and part constitutional stress ball whenever federal employment disputes become politically charged.

Both agencies were designed to have some insulation from day-to-day political pressure. Their members are appointed by the president and confirmed by the Senate, but Congress also wrote removal protections into the statutes creating their positions.

The Statutory Removal Protections

Congress did not leave the removal question vague. The National Labor Relations Act provides that an NLRB member may be removed by the president, after notice and a hearing, for “neglect of duty or malfeasance in office,” but not for other reasons. That language is a classic “for-cause” removal restriction.

The MSPB statute is similarly protective. A member may be removed by the president only for “inefficiency, neglect of duty, or malfeasance in office.” Again, the basic idea is that a president cannot simply replace a board member because the member’s policy views, party affiliation, or case outcomes are inconvenient.

For decades, these provisions reflected a familiar compromise in federal administration. Congress could create an agency inside the executive branch while giving its leaders a measure of independence. Presidents could still appoint members, nominate successors, designate leadership roles where authorized, and influence the agency through policy priorities. But they could not necessarily fire a sitting member simply because they preferred someone more aligned with their agenda.

That compromise now faces a major constitutional challenge.

The Core Constitutional Argument: The President Must Control Executive Power

Supporters of broad presidential removal power often rely on Article II of the Constitution, which gives the president “the executive Power” and requires the president to ensure that the laws are faithfully executed. Their central argument is straightforward: If an officer exercises executive power on behalf of the United States, the president must have meaningful authority to supervise and remove that officer.

Otherwise, the argument goes, the public may not know whom to hold accountable for federal policy. If a federal agency makes major enforcement, adjudicatory, rulemaking, or management decisions, but its leaders cannot be removed by the elected president, then accountability becomes fuzzy. And in government, fuzzy accountability has a tendency to become a full-blown constitutional fog machine.

The Supreme Court has increasingly emphasized presidential control over officers who exercise significant executive authority. In Seila Law LLC v. Consumer Financial Protection Bureau, the Court held that Congress could not protect the single director of the CFPB from removal except for cause. The Court described presidential removal power as the general rule, while recognizing only limited historical exceptions.

In Collins v. Yellen, the Court similarly concluded that a for-cause removal restriction for the single director of the Federal Housing Finance Agency violated the separation of powers. The decision reinforced the idea that a president generally must retain removal authority over an agency head with substantial executive power.

The Counterargument: Independent Agencies Are a Constitutional Feature, Not a Bug

Those defending removal protections make a different argument. They point to the long-standing Supreme Court precedent of Humphrey’s Executor v. United States, decided in 1935. That case upheld removal restrictions for members of the Federal Trade Commission, reasoning that Congress could create certain multimember expert bodies that perform quasi-legislative and quasi-judicial functions.

The underlying concept is not that independent agency members float outside the Constitution like legal balloons at a parade. Instead, the argument is that Congress may structure particular agencies to reduce direct political pressure when their work requires expertise, continuity, neutrality, or adjudicative independence.

For example, an agency deciding whether a worker was unlawfully fired for organizing a union may need to apply a statute consistently, even when the political winds are blowing hard enough to knock over a D.C. umbrella stand. Likewise, a federal employee appealing a removal may expect a tribunal that is not easily reshaped in the middle of a politically sensitive workforce dispute.

Defenders of the NLRB and MSPB protections argue that these boards resemble the kinds of multimember bodies that Humphrey’s Executor allowed Congress to shield from at-will removal. They also argue that eliminating the protections could turn staggered terms and bipartisan membership rules into decorative wallpaper.

The 2025 Removal Disputes Involving Gwynne Wilcox and Cathy Harris

The modern controversy intensified in 2025, when President Donald Trump removed NLRB member Gwynne Wilcox and MSPB member Cathy Harris before the expiration of their terms. The removals did not rely on allegations that either official had committed neglect of duty, inefficiency, or malfeasance under the statutory standards.

Wilcox and Harris challenged their removals in federal court. District courts initially ruled in their favor, concluding that the statutory removal protections remained valid under existing Supreme Court precedent. Those rulings treated the removal restrictions as binding law rather than optional fine print that could be ignored when politically inconvenient.

But the litigation quickly moved upward. The Supreme Court, in an emergency order in Trump v. Wilcox, allowed the removals to remain in effect while the cases continued. The Court stated that the government was likely to show that the NLRB and MSPB exercise considerable executive power. The order was temporary and did not formally overrule Humphrey’s Executor, but it sent a loud signal through the federal-agency world.

That signal was not subtle. It was more like a constitutional megaphone placed directly outside the headquarters of every independent agency in Washington.

The D.C. Circuit’s Major Ruling

In December 2025, a divided panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the president could remove NLRB and MSPB members without complying with the statutory for-cause restrictions. The majority concluded that both agencies exercise substantial executive power and that Congress therefore could not limit the president’s removal authority over their members.

The majority viewed the NLRB as more than a neutral adjudicative body. It emphasized the Board’s role in administering federal labor law, resolving cases, shaping policy through decisions, and exercising authority with practical effects on employers and workers. The court treated the MSPB similarly, noting that it does more than decide individual appeals. The MSPB can review personnel systems, conduct studies, participate in rule-related functions, and affect the operation of federal employment law.

The dissent took a sharply different view. It argued that the NLRB and MSPB fit within the historical tradition of independent, multimember agencies whose members Congress may protect from removal. The dissent warned that treating virtually all meaningful agency authority as “substantial executive power” could erase the constitutional space for independent agencies recognized in earlier Supreme Court decisions.

Why the “Substantial Executive Power” Test Matters

The phrase “substantial executive power” may sound like something a lawyer says while holding a coffee that costs more than lunch. But it could become the central test for deciding whether removal protections survive.

Under this approach, the question is not simply whether an agency is called “independent.” Labels do not do much legal heavy lifting. The real question is what the agency actually does. Does it investigate? Enforce? Issue binding decisions? Make policy? Bring litigation? Regulate conduct? Direct federal operations?

If the answer is yes, a court may conclude that the president must be able to remove its leaders at will. If the agency performs functions that are narrowly adjudicative, advisory, historical, or otherwise distinct from ordinary executive power, courts may be more willing to tolerate removal protections.

This functional approach has major consequences. It could place agencies on a spectrum rather than in neat constitutional boxes. One agency may be partly adjudicative but also have enforcement authority. Another may be multimember but still exercise significant policy power. The law may increasingly ask not, “Is this agency independent?” but rather, “How executive is this agency on a Tuesday afternoon?”

The Supreme Court’s Pending Role

The Supreme Court’s pending consideration of Trump v. Slaughter, involving removal protections for Federal Trade Commission members, may provide a broader answer to the future of Humphrey’s Executor. The Court agreed to decide whether statutory removal protections for FTC members violate separation-of-powers principles and whether Humphrey’s Executor should be overruled.

As of late June 2026, the Court had heard arguments in the FTC case but had not yet issued its final merits decision. That means the legal terrain remains active rather than settled. A final decision could clarify whether Humphrey’s Executor survives, is narrowed further, or is largely displaced by a stronger presidential-control doctrine.

The Harris and Wilcox disputes also remain procedurally significant. Harris sought Supreme Court review after the D.C. Circuit ruling, while Wilcox received an extension of time to seek review of the same underlying appellate decision.

Practical Effects on the NLRB

The removal issue is not merely academic for the NLRB. The Board needs a quorum to issue decisions in many cases. When vacancies or disputed removals reduce the number of sitting members below the quorum threshold, major labor disputes can remain unresolved.

That can affect union-election cases, bargaining disputes, retaliation allegations, organizing campaigns, and employer challenges. A delay at the Board level can mean uncertainty for workers trying to organize, employers trying to understand their obligations, and unions trying to secure remedies.

The NLRB announced in January 2026 that newly sworn-in members restored a quorum, allowing the Board to resume conducting business. Even so, the constitutional dispute remains important because future presidents could rely on the removal precedent to reshape the Board more quickly than through ordinary term expirations and Senate confirmations.

Practical Effects on the MSPB

The MSPB’s work can be especially important during periods of federal workforce restructuring. Federal employees may seek review of removals, suspensions, reductions in force, whistleblower retaliation claims, and other employment actions. When the Board lacks members or cannot act efficiently, appeals can stall.

The MSPB is not simply an internal human-resources department with a fancier logo. It can provide an independent review mechanism for covered federal employees. Its decisions can affect careers, agency practices, whistleblower protections, and the credibility of the merit-based civil service.

If presidents may remove MSPB members without cause, supporters say that greater accountability will follow because agency leaders will answer more directly to the elected chief executive. Critics say the Board may become less able to serve as a neutral check when disputes involve politically sensitive workforce decisions.

What This Could Mean for Other Independent Agencies

The stakes extend well beyond labor law and federal employment appeals. A broad ruling favoring at-will presidential removal could affect the legal foundation of many independent agencies and commissions.

Potentially affected institutions could include agencies with enforcement, adjudicatory, rulemaking, consumer-protection, communications, financial-regulatory, or workplace-related authority. The exact result would depend on the statutory structure of each agency, the type of official involved, the amount of executive power exercised, and any special constitutional history attached to that institution.

One important lesson from recent Supreme Court cases is that not every agency structure will be treated identically. The Court has distinguished between single-director agencies and multimember commissions, while also narrowing the reach of historical exceptions. The direction of travel, however, has generally favored stronger presidential control over officers who wield meaningful executive authority.

Experience and Lessons From the Presidential Removal Debate

The recent NLRB and MSPB disputes offer several practical lessons for employers, workers, unions, federal employees, agency leaders, and anyone who has ever wondered why an old court case from 1935 can suddenly become the main character in 2026.

1. Agency Independence Can Be Fragile

For many years, independent agencies were treated as a durable part of the federal-government landscape. Their staggered terms, bipartisan membership requirements, Senate confirmation process, and removal protections were designed to create continuity across presidential administrations.

But the Wilcox and Harris litigation shows that institutional design can be less permanent than it appears. A statute may say that an official can be removed only for cause, yet a constitutional challenge can place that protection in doubt. Agencies therefore cannot assume that long-standing practices will remain untouched simply because they have survived for decades.

2. Court Orders Can Change Agency Operations Overnight

The removal litigation demonstrated how quickly legal rulings can affect real operations. A district court may reinstate an official. An appellate court may stay that ruling. The Supreme Court may issue an emergency order. A Board may suddenly lose a quorum, regain it, or operate under uncertainty while cases proceed.

For businesses and workers, this means agency developments should be monitored closely. A change in membership can affect case priorities, enforcement philosophy, procedural timing, and the likelihood of significant policy reversals. Anyone relying on an agency’s current approach should remember that administrative law occasionally moves with the speed of a startled cat.

3. “Independent” Does Not Mean Untouchable

One of the most important lessons is that the word “independent” does not automatically settle the removal question. The Supreme Court has made clear that statutory text, constitutional structure, and the actual powers exercised by an officer all matter.

An agency can be independent in everyday political vocabulary while still being vulnerable to a constitutional challenge. Courts may ask whether its members primarily adjudicate disputes, enforce laws, make policy, manage operations, issue regulations, bring litigation, or perform a combination of all of those functions.

4. Congress Still Has Tools, but Its Choices Matter

Congress is not powerless in this debate. It can create agencies, define their authority, establish appointment procedures, impose bipartisan requirements, structure terms, set appropriations, conduct oversight, and write statutes that clearly specify removal rules.

However, Congress must now design agencies with greater attention to constitutional risk. The more substantial executive authority an agency exercises, the more likely its removal protections may face judicial scrutiny. Future statutes may need to distinguish more carefully between enforcement powers, adjudicative powers, advisory functions, and management authority.

5. The Debate Is About Accountability and Neutrality at the Same Time

The strongest arguments on both sides reflect legitimate constitutional values. Supporters of broad presidential removal power emphasize democratic accountability. They argue that the president cannot faithfully execute the laws if powerful officials can defy presidential direction while remaining protected from removal.

Supporters of for-cause protections emphasize neutrality and stability. They argue that agencies deciding labor disputes, federal employment appeals, consumer matters, and technical regulatory questions should not be transformed into short-term political instruments every time the White House changes hands.

The difficult question is how to balance those values. Too much insulation may weaken democratic accountability. Too little insulation may weaken expertise, consistency, and public confidence in neutral decision-making. The Constitution, unsurprisingly, does not include a handy settings menu where everyone can select “moderate independence.”

6. Employers and Employees Should Watch More Than Court Headlines

Organizations often focus on major Supreme Court headlines, but practical changes can begin at the agency level. New members may alter enforcement priorities, revise internal guidance, change litigation strategies, reconsider past precedent, or shift how aggressively an agency pursues certain categories of cases.

Employers should monitor NLRB developments involving union activity, workplace rules, employee communications, discipline, and labor relations. Federal employees and their representatives should monitor MSPB developments involving appeals procedures, whistleblower protections, adverse actions, and merit-system enforcement.

In other words, constitutional litigation can begin as a dispute about removal power and end as a change in how ordinary workplace and employment disputes are handled. The ripple effect can be much larger than the original court caption suggests.

Conclusion: A Major Test of Presidential Control

The question of whether a president may remove NLRB and MSPB members without cause is one of the most important separation-of-powers disputes in modern administrative law. It reaches beyond two boards and asks a foundational question: How independent can an executive-branch agency be before it conflicts with presidential control?

The statutory text for both agencies clearly provides for-cause protections. The recent litigation, however, has placed those protections under intense constitutional pressure. The Supreme Court’s temporary action in Trump v. Wilcox, the D.C. Circuit’s later ruling, and the pending Supreme Court decision in Trump v. Slaughter suggest that the law is moving toward stronger presidential removal authority, although the final boundaries remain unsettled.

For now, the NLRB and MSPB disputes provide a vivid example of how constitutional doctrine can shape everyday government. A removal case can determine who sits on a Board. A Board’s membership can determine whether cases move forward. And those cases can affect workers, employers, unions, federal agencies, and the public.

That is why this issue deserves attention. It may sound like an argument over bureaucratic seating charts, but it is really a dispute about power, accountability, independence, and who gets to steer the federal government when the constitutional road gets curvy.