On Monday, the Supreme Court will hear oral argument in Trump v. Slaughter, the case challenging limitations on the President's ability to remove members of the Federal Trade Commission. In resolving this question, the Court will consider whether to narrow or overrule Humphrey's Executor.
Perhaps to aid in the Court's deliberations, today the U.S. Court of Appeals for the D.C. Circuit decided the combined cases of Harris v. Bessent and Wilcox v. Trump, concerning the limitations on removal of members of the Merit System Protection Board and National Labor Relations Board.
In Harris, a divided panel concluded that the President could remove members of both the MSPB and NLRB on the grounds that both entities exercise executive power and that limitations on removal in such contexts is contrary to the Supreme Court's decision in Seila Law v. CFPB. In this way, the panel sought to distinguish this case from Humphrey's Executor, which concerned an FTC that, at the time, exercised quasi-legislative and quasi-judicial power, as opposed to core executive power. In the process the panel also provided the Court a potential roadmap for upholding President Trump's removal of Slaughter from the FTC without formally over-ruling Humphrey's Executor (and perhaps, in the process, giving a nod to revisionist scholarship suggesting that limits on removal in the context of officers exercising quasi-judicial is consistent with history and tradition).
