President Trump removed Federal Trade Commissioner Rebecca Slaughter without cause. The District Court ordered that Slaughter must be reinstated. Today, a divided panel of the D.C. Circuit declined to stay that order. Judges Millett and Pillard found that Wilcox and Boyle did not reverse Humphrey's Executor. As a result, that under-siege precedent controls this case. Judge Rao dissented, and parsed how the lower courts should read emergency docket orders that arise from stay applications.
I do not think this is a case where the D.C. Circuit is overtly defying Wilcox and Boyle, as Justice Gorsuch put it in NIH. Rather, I think the majority and dissent vigorously disagree about how to parse the effect of Wilcox and Boyle on Humphrey's Executor.
The majority opinion explains that Wilcox concerned the NLRB and MSPB and Boyle concerned the CPSC. By contrast, the Supreme Court did not issue any new ruling concerning the FTC. The only precedent on the books for that case is Humphrey's Executor.
