Case 1:25-cv-00334-BAH     Document 35     Filed 03/06/25     Page 1 of 36

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 25-334 (BAH)

Judge Beryl A. Howell

GWYNNE A. WILCOX,

Plaintiff,

v.

DONALD J. TRUMP, in his official capacity
as President of the United States

and

MARVIN E. KAPLAN, in his official
capacity as Chairman of the National Labor
Relations Board,

Defendants.

MEMORANDUM OPINION

Scholars have long debated the degree to which the Framers intended to consolidate

executive power in the President.  The “unitary executive theory”—the theory, in its purest form,

that, under our tri-partite constitutional framework, executive power lodges in a single

individual, the President, who may thus exercise complete control over all executive branch

subordinates without interference by Congress—has been lauded by some as the hallmark of an

energetic, politically accountable government, while rebuked by others as “anti-American,” a

“myth,” and “invented history.”1  Both sides of the debate raise valid concerns, but this is no

Compare, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from

1
Washington to Bush (2008), Saikrishna B. Prakash, Imperial from the Beginning: The Constitution of the Original
Executive (2015), and Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws,
104 YALE L.J. 541, 597 (1994); with, e.g., Allen Shoenberger, The Unitary Executive Theory is Plainly Wrong and
Anti-American: “Presidents are Not Kings,” 85 ALB. L. REV. 837, 837 (2022), Christine Kexel Chabot, Interring
the Unitary Executive, 98 NOTRE DAME L. REV. 129 (2022), and Lawrence Lessig & Cass R. Sunstein, The
President and the Administration, 94 COLUM. L. REV. 1, 4 (1994) (“Any faithful reader of history must conclude that
the unitary executive . . . is just myth.”); Cass R. Sunstein, This Theory is Behind Trump’s Power Grab, N.Y. TIMES
(Feb. 26, 2025), https://www.nytimes.com/2025/02/26/opinion/trump-roberts-unitary-executive-theory.html; see

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mere academic exercise.2  The outcome of this debate has profound consequences for how we

Americans are governed.  On the one hand, democratic principles militate against a “headless

fourth branch”3 made up of politically unaccountable, independent government entities that

might become agents of corrupt factions or private interest groups instead of the voting public.

Additionally, at least theoretically, empowering a President with absolute control over how the

Executive branch operates, including the power to “clean house” of federal employees, would

promote efficient implementation of presidential policies and campaign promises that are

responsive to the national electorate.  On the other hand, the advantages of impartial, expert-

driven decision-making and congressional checks on executive authority favor some agency

independence from political changes in presidential administrations, with the concomitant

benefits of stability, reliability, and moderation in government actions.  No matter where these

pros and cons may lead, the crucial question here is, what does the U.S. Constitution allow?

To start, the Framers made clear that no one in our system of government was meant to

be king—the President included—and not just in name only.  See U.S. CONST. art. I, § 9, cl. 8

(“No Title of Nobility shall be granted by the United States.”).  Indeed, the very structure of the

Constitution was designed to ensure no one branch of government had absolute power, despite

also Julian Davis Mortenson, The Executive Power Clause, 168 U. PA. L. REV. 1269, 1334 (2020) (describing “the
exercise of executive power” as “fully subordinate to instructions by its legislative principal” at the founding).

The academy has provided various formulations of the “unitary executive” theory.  See, e.g., Steven G.

2
Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV.
1153, 1158 (1992) (“Unitary executive theorists claim that all federal officers exercising executive power must be
subject to the direct control of the President.”); Lessig & Sunstein, supra, at 2 (“Many think that under our
constitutional system, the President must have the authority to control all government officials who implement the
laws.”); Chabot, supra, at 129 (2022) (describing the “unitary executive” theory as the idea that the Constitution
gave the President “plenary removal power” affording him “‘exclusive control over subordinates’ exercise of
executive power”).

3
Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84
COLUM. L. REV. 573, 578 (1974) (quoting The President’s Comm. on Admin. Mgmt., Administrative Management
in the Government of the United States 30 (1937)).

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the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that

may flow from the checks and balances foundational to our constitutional system of governance.

The Constitution provides guideposts to govern inter-branch relations but does not fully

delineate the contours of the executive power or the degree to which the other two branches may

place checks on the President’s execution of the laws.  As pertinent here, the Constitution does

not, even once, mention “removal” of executive branch officers.  The only process to end federal

service provided in the Constitution is impeachment, applicable to limited offices (like judges

and the President) after a burdensome political process.  See, e.g., id. art. II, § 4 (impeachment of

President); id. art. III, § 1 (impeachment of federal judges).  This constitutional silence on

removal perplexed the First Congress, bedeviled a President shortly thereafter and a second

President after the Civil War during Reconstruction (leading to condemnation of the former and

impeachment proceedings against the latter), and has beset jurists and scholars in our modern

era.  See infra Part III.A.3.b.4

Yet, in assessing separation of powers, the Constitution itself is not the only available

guide.  Historical practice and a body of case law are, respectively, instructive and binding.  See

infra Part III.A.1; e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 23 (2015) (“In

separation of powers cases this Court has often ‘put significant weight upon historical practice.’”

(quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014))).  Both make clear that textual

4
In 1834, President Andrew Jackson fired two Secretaries of the Treasury when each refused his order to
remove U.S. funds from the Second National Bank, which Jackson viewed as having “resist his reelection in
part with bank funds,” and these removal actions triggered a congressional condemnation resolution for an abuse of
power.  See Lessig & Sunstein, supra n.1, at 78-80.  Jackson’s replacement as Secretary at Treasury, Roger Taney,
did as ordered and was later appointed Chief Justice.  Id. at 79.  The resolution condemning President Jackson was
ultimately expunged, in 1837, but not without significant debate and Jackson’s reputational decline.  See id. at 81-
83.

Over thirty years later, in 1867, President Andrew Johnson’s removal of the Secretary of War in defiance of

a congressional statute led to his impeachment and near conviction.  Richard Murphy, 32 FED. PRAC. & PROC. JUD.
REV. § 8128 (2d ed.) (2024).

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silence regarding removal does not confer absolute authority on a President to willy-nilly

override a congressional judgment that expertise and insulation from direct presidential control

take priority when a federal officer is tasked with carrying out certain adjudicative or

administrative functions.  As Justice Louis Brandeis eloquently opined, “hecks and balances

were established in order that this should be ‘a government of laws and not of men,’” observing

further that the separation of powers was not adopted “to promote efficiency but to preclude the

exercise of arbitrary power.  The purpose was, not to avoid friction, but, by means of the

inevitable friction incident to the distribution of the governmental powers among three

departments, to save the people from autocracy.”  Myers v. United States, 272 U.S. 52, 292-93

(1926) (Brandeis, J., dissenting).

A President who touts an image of himself as a “king” or a “dictator,”5 perhaps as his

vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S.

Constitution.  In our constitutional order, the President is tasked to be a conscientious custodian

of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including

the laws enacted by the Congress and as interpreted by the Judiciary.  U.S. CONST. art. II, § 3

(“e shall take Care that the Laws be faithfully executed . . . .”).  At issue in this case, is the

President’s insistence that he has authority to fire whomever he wants within the Executive

branch, overriding any congressionally mandated law in his way.  See Letter from Sarah Harris,

Acting Solicitor General, to Sen. Richard Durbin on Restrictions on the Removal of Certain

See @WhiteHouse, X (Feb. 19, 2025, 1:58 PM), https://perma.cc/V9Y2-SWRD (“LONG LIVE THE

5
KING!”); WSJ News, Trump Says He Won’t Be a Dictator “Except for Day One” if Re-Elected, YOUTUBE (DEC. 6,
2023), https://www.youtube.com/watch?v=dQkrWL7YuGk; see also @realDonaldTrump, X (Feb. 15, 2025, 1:32
PM), https://perma.cc/S5GR-BXF5 (“He who saves his Country does not violate any Law.”).  Some of defendants’
supporting amici also draw analogies to the British monarchy; Tennessee has described the tradition of the British
king’s “‘prerogative power to remove’ executive officers ‘at will,’” which “carried into the United States.”
Tennessee’s Amicus Br. at 5-6 (quoting Michael W. Connell, The President Who Would Not Be King 162 (2020)).
In a democracy created to repudiate that very regime, that analogy has little purchase.

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Principal Officers of the United States (“Letter from Acting SG”) (Feb. 12, 2025),

https://perma.cc/D67G-FKK4 (describing the Trump administration’s view of the removal

power).  Luckily, the Framers, anticipating such a power grab, vested in Article III, not Article

II, the power to interpret the law, including resolving conflicts about congressional checks on

presidential authority.  The President’s interpretation of the scope of his constitutional power—

or, more aptly, his aspiration—is flat wrong.

The President does not have the authority to terminate members of the National Labor

Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a

blatant violation of the law.  Defendants concede that removal of plaintiff as a Board Member

violates the terms of the applicable statute, see Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:12-

13, and because this statute is a valid exercise of congressional power, the President’s excuse for

his illegal act cannot be sustained.

I.

BACKGROUND

The statutory and procedural background relevant to resolving this dispute is summarized

below.

A.

Statutory Background

The National Labor Relations Board (“NLRB”) was established ninety years ago by

Congress in the National Labor Relations Act (“NLRA”) in response to a long and violent

struggle for workers’ rights.  See generally, J. Warren Madden, Origin and Early Years of the

National Labor Relations Act, 18 HASTINGS L.J. 571 (1967); Arnold Ordman, Fifty Years of the

NLRA: An Overview, 88 W. VA. L. REV. 15, 15-16 (1985).  Congress sought to protect industrial

peace and stability in labor relations and thus created a board to resolve efficiently labor disputes

and protect the rights of employees to “self-organization, to form, join, or assist labor

organizations  to bargain collectively through representatives of their own choosing.”  29

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U.S.C. §157; see also id. § 151; Crey v. Westinghouse Elec. Corp., 375 U.S. 261, 271 (1964)

(describing these goals); Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362 (1949) (same).

The NLRB is a “bifurcated agency” consisting, on one side, of a five-member, quasi-

judicial “Board” that adjudicates appeals of labor disputes from administrative law judges

(“ALJs”), and on the other, of a General Counsel (“GC”) and several Regional Directors who

prosecute unfair labor practices and enforce labor law and policy.  See NLRB, Who We Are,

https://perma.cc/9RLA-FSYL; 29 U.S.C. §§ 153(a), (d), 160; Starbucks v. McKinney, 602 U.S.

339, 357 (2024) (Jackson, J., concurring in part and dissenting in part).  The two sides operate

independently, with the GC independent of the Board’s control.  NLRB v. United Food & Com.

Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 117-18 (1987) (describing how the Labor

Management Relations Act of 1947 amended the NLRA to separate the prosecutorial and

adjudicatory functions between the Board and General Counsel).

The NLRB generally addresses labor disputes as follows: Upon the filing of a “charge”

by an employer, employee, or labor union, a team working under the Regional Director will

investigate and decide whether to pursue the allegation as a formal complaint.  See NLRB,

Investigate Charges, https://perma.cc/CU82-KU4V.6  If the parties do not settle and the Director

formally pursues the complaint, the Director will issue notice of a hearing before an ALJ.  Id.; 29

U.S.C. § 160(b); 29 C.F.R. § 101.10; Starbucks, 602 U.S. at 342-43.7   If necessary, after

issuance of a complaint, the Board may seek temporary injunctive relief in federal district court

while the dispute is pending at the NLRB.  29 U.S.C. § 160(j); Starbucks, 602 U.S. at 342.  The

6
issues a “complaint.”   NLRB, What We Do, https://perma.cc/CU82-KU4V.

The initial request made by the employee, union, or employer is referred to as a “charge”; only the Director

7
at 120.

If the parties do formally settle after issuance of a complaint, Board approval is required.  NLRB, 484 U.S.

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ALJ then gathers evidence and presents “a proposed report, together with a recommended order

to the Board.”  29 U.S.C. § 160(c).  That order will become the order of the Board unless the

parties file “exceptions.”  Id.; 29 C.F.R. §§ 101.11-.12.  If the parties file exceptions requesting

the Board’s review, the Board will consider the ALJ’s recommendation, gather additional facts

as necessary, and issue a decision.  29 U.S.C. § 160(c); 29 C.F.R. § 101.12.  The Board may craft

relief, such as a cease-and-desist order to halt unfair labor practices or an order requiring

reinstatement of terminated employees.  29 U.S.C. § 160(c).  These orders, however, are not

independently enforceable; the Board must seek enforcement in a federal court of appeals (and

may appoint attorneys to do so).  Id. §§ 154, 160(e); In re NLRB, 304 U.S. 486, 495 (1938)

(noting compliance with a Board order is not obligatory until entered as a decree by a court).

Aside from adjudicating disputes, the Board may also conduct and certify the outcome of union

elections, 29 U.S.C. § 159, and promulgate rules and regulations to carry out its statutory duties,

id. § 156.

Although both the Board members and the GC are appointed by the President with

“advice and consent” from the Senate, id. §§ 153(a), (d), only the Board is protected from

removal at-will by the President, who is authorized to remove a Board member “upon notice and

hearing, for neglect of duty or malfeasance in office, but for no other cause,” id. § 153(a).  Such

restrictions were intentional; much like many other multimember entities, the Board was

designed to be an independent panel of experts that could impartially adjudicate disputes.  See 29

U.S.C. § 153(a); Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and

Executive Agencies), 98 CORNELL L. REV. 76, 770-71 (2013) (describing the NLRB as a classic

example of an agency designed to be independent).  Board members serve staggered five-year

terms, and the President is authorized to designate one board member as Chairman.  29 U.S.C.

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§ 153(a).  In practice, the Board is partisan-balanced based on longstanding norms, though such a

balance is not statutorily mandated.  See Brian D. Feinstein & Daniel J. Hemel, Partisan Balance

with Bite, 118 COLUM. L. REV. 9, 54-55 (2018).

B.

Factual Background

As set out in plaintiff’s complaint and statement of material facts, and undisputed by

defendants, plaintiff Gwynne Wilcox was nominated by President Biden and confirmed by the

U.S. Senate to a second five-year term as member of the NLRB in September 2023.  Pl.’s Mot.

for Expedited Summ. J. (“Pl.’s Mot.”), Statement of Material Facts (“Pl.’s SMF”) ¶ 2, ECF No.

10-1; Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J., Statement of

Undisputed Material Facts (“Defs.’ SUMF”) ¶ 2, ECF No. 23-2.  She was designated Chair of

the Board in December 2024.  Complaint ¶ 12, ECF No. 1.

Shortly after taking office, President Trump moved Marvin Kaplan, a then-sitting Board

member and a defendant in this case, into the position of Chair, replacing plaintiff.  Id. ¶ 13.

President Trump then, on January 27, 2025, terminated plaintiff from her position on the Board

via an email sent shortly before 11:00 PM, by the Deputy Director of the White House

Presidential Personnel Office.  Pl.’s Decl., Ex. A, ECF No. 10-4; Pl.’s SMF ¶ 3; Defs.’ SUMF

¶ 3.  The termination was not preceded by “notice and hearing,” nor was any “neglect of duty or

malfeasance” identified, despite the explicit restrictions to removal of a Board member in the

NLRA.  Pl.’s Decl. ¶¶ 3-4; Pl.’s SMF ¶¶ 4-5; Defs.’ SUMF ¶ 5 (regarding lack of notice and

hearing); Motions H’rg (Mar. 5, 2025), Rough Tr. at 51:10-17.  The email instead cited only

political motivations—that plaintiff does not share the objectives of the President’s

administration—and asserted, in a footnote, that the restriction on the President’s removal

authority is unconstitutional as “inconsistent with the vesting of the executive Power in the

President.”  Pl.’s Decl. ¶ 3; Ex. A.

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The NLRB’s Director of Administration, who reports directly to Mr. Kaplan, began the

termination process, cutting off plaintiff’s access to her accounts and instructing her to clean out

her office.  Pl.’s Decl. ¶¶ 5-6.  The Board already had two vacancies, and now, without plaintiff,

it is reduced to only two sitting members—one short of the three-member quorum required to

operate.  Compl. ¶ 18; 29 U.S.C. § 153(b).  Removal of plaintiff has thus stymied the functioning

of the Board.

Plaintiff filed the instant suit, challenging her removal and requesting injunctive relief

against Mr. Kaplan so that she may resume her congressionally mandated role.  See Compl.

¶¶ 21-22.  Recognizing that this case involves a pure question of law, plaintiff moved for

expedited summary judgment, on February 10, 2025, Pl.’s Mot., ECF No. 10, and defendants

responded with a cross-motion for summary judgment, with briefing completed on a condensed

schedule.  See Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J. (“Defs.’

Opp’n”), ECF No. 23; Pl.’s Opp’n to Defs.’ Cross-Mot. and Reply in Supp. of Mot. for Summ. J.

(“Pl.’s Reply”), ECF No. 27; Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”),

ECF No. 30.  Interested parties also weighed in as amici.8  Following a hearing, held on March

5, 2025, the parties’ cross-motions for summary judgement are ready for resolution.

II.

LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”  FED. R. CIV. P.

56(a).  A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under the

Amici include: the Constitutional Accountability Center (“CAC”) and a cohort of nineteen states and the

8
District of Columbia, led by Minnesota, writing in support of plaintiff, see CAC’s Amicus Br., ECF No. 15;
Nineteen States & D.C.’s Amicus Br., ECF No. 31; and Tennessee and a cohort of twenty states, led by Florida,
writing in support of defendants, see Tennessee’s Amicus Br., ECF No. 18; Twenty States’ Amicus Br., ECF No.
26.

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governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary

judgment determination.”  Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  The dispute is only “genuine” if

“the evidence is such that a reasonable jury could return a verdict for the non-moving party.”  Id.

(quoting Anderson, 477 U.S. at 248).

A plaintiff “seeking a permanent injunction . . . must demonstrate: (1) that it has suffered

an irreparable injury; (2) that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the balance of hardships between

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest

would not be disserved by a permanent injunction.”  Monsanto Co v. Geertson Seed Farms, 561

U.S. 139, 156-57 (2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

III.  DISCUSSION

In the ninety years since the NLRB’s founding, the President has never removed a

member of the Board.  Pl.’s Mem. in Supp. of Pl.’s Mot. (“Pl.’s Mem.”) at 4, ECF No. 10-2.  His

attempt to do so here is blatantly illegal, and his constitutional arguments to excuse this illegal

act are contrary to Supreme Court precedent and over a century of practice.  For the reasons

explained below, plaintiff’s motion is granted.  Plaintiff’s termination from the Board was

unlawful, and Mr. Kaplan and his subordinates are ordered to permit plaintiff to carry out all of

her duties as a rightful, presidentially-appointed, Senate-confirmed member of the Board.

A.

Humphrey’s Executor and its Progeny are Binding on this Court.

The Board is a paradigmatic example of a multimember group of experts who lead an

independent federal office.  Since the early days of the founding of this country, Congress, the

President, and the Supreme Court all understood that Congress could craft executive offices with

some independence, as a check on presidential authority.  That understanding has not changed

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over the 150-year history of independent, multimember commissions, nor over the 90-year

history of the NLRB.  The Supreme Court recognized this history and tradition in Humphrey’s

Executor v. United States, 295 U.S. 602 (1935), in upholding removal protections for such

boards or commissions, and this precedent remains not only binding law, but also a well-

reasoned reflection of the balance of power between the political branches sanctioned by the

Constitution.

Removal Restrictions on Board Members are Well-Grounded in History

1.
and Binding Precedent.

As a textual matter, the Constitution is silent as to removals.  See In re Hennen, 38 U.S.

230, 258 (1839).  Consequently, though Article II grants the President authority over some

appointments—with advice and consent of the Senate—and vests in him the “executive power,”

Article II contains no express authority from which to infer an absolute removal power.

Compare U.S. CONST. art. II, § 1, cl. 1 (vesting clause), and id., § 2, cl. 2 (appointments clause);

to id. art. I, § 8, cl. 18 (clause granting Congress the authority “to make all laws” “necessary and

proper” for carrying out its powers and “all other Powers vested . . . in the Government”).  The

Supreme Court has held that a general power to remove executive officers can be inferred from

Article II, see Myers, 272 U.S. at 163-64, yet the contours of that removal power and the extent

to which Congress may impose constraints are nowhere clearly laid out.

The courts in such cases must therefore turn to established precedent—judicial decisions

as well as general practice and tradition.  The Supreme Court has repeatedly recognized that

“‘traditional ways of conducting government . . . give meaning’ to the Constitution.”  Mistretta v.

United States, 488 U.S. 361, 401 (1989) (alteration in original) (quoting Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring)).  Thus, “n

separation-of-powers cases this Court has often ‘put significant weight upon historical practice.’”

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Zivotofsky, 576 U.S. at 23 (quoting Noel Canning, 573 U.S. at 524).  Even when the validity of a

particular power is in question, the Court will, “in determining the . . . existence of  power,”

give weight to “the usage itself,” United States v. Midwest Oil Co., 236 U.S. 459, 473 (1915),

and “hesitate to upset the compromises and working arrangements that the elected branches of

Government themselves have reached,” Noel Canning, 573 U.S. at 526.  Justice Frankfurter in

his seminal concurring opinion in Youngstown declared that “systematic, unbroken” practice

could even “be treated as a gloss on ‘executive Power’ vested in the President.”  343 U.S. at 610-

11.

Not only are the removal protections on members of the independent, multimember

boards like the NLRB supported by over a century of unbroken practice, but they have also been

expressly upheld in clear Supreme Court precedent.  Since 1887, Congress has created multiple

independent offices led by panels whose members are appointed by the President but removable

only for cause.  See, e.g., Interstate Commerce Act, Pub. L. No. 49-41, ch. 104, § 11, 24 Stat.

379, 383 (1887) (creating the Interstate Commerce Commission, with restrictions on officers’

removal except for “inefficiency, neglect of duty, or malfeasance”); Federal Reserve Act, Pub. L.

No. 63-64, ch. 6, § 10, 38 Stat. 251, 260-61 (1913) (creating the Federal Reserve Board, whose

members are removable only “for cause”).  In 1914, Congress established the Federal Trade

Commission (“FTC”) with an “inefficiency, neglect of duty, or malfeasance in office” removal

restriction for its five commissioners.  FTC Act, Pub. L. No. 63-203, ch. 311, § 1, 38 Stat. 717,

717-18 (1914).

The Supreme Court explicitly upheld removal restrictions for such boards when

considering removal protections for the commissioners of the FTC in Humphrey’s Executor in

1935, while also recognizing the President’s general authority over removal of executive branch

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officials.  The Court noted that commissioners of the FTC, “like the Interstate Commerce

Commission” “are called upon to exercise the trained judgment of a body of experts ‘appointed

by law and informed by experience.’”  Id. at 624 (quoting Ill. Cent. R.R. Co. v. Interstate Com.

Comm’n, 206 U.S. 441, 454 (1907)).  Congress, having the power to create such expert

commissions with quasi-legislative and quasi-judicial authority, must also have, “as an

appropriate incident, power to fix the period during which they shall continue, and to forbid their

removal for except for cause in the meantime.”  Id. at 629.

Two months later, with the guidance supplied in Humphrey’s Executor and following the

model of the FTC as endorsed by the Supreme Court there, Congress established the National

Labor Relations Board.  See Madden, supra, at 572-73; Yapp USA Auto. Sys., Inc. v. NLRB, --F.

Supp. 3d--, No. 24-cv-12173, 2024 WL 4119058, at *5 (E.D. Mich. Sep. 9, 2024).  Both

entities—the FTC and NLRB—have five-member leadership boards with staggered terms of

several years, minimizing instability and allowing for expertise to accrue.  See 29 U.S.C.

§ 153(a); Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 216 (2020).  Both were

intended to exercise impartial judgment.  See Datla & Revesz, supra, at 770-71 (describing

independence of the NLRB); Seila L., 591 U.S. at 215-16 (describing the FTC as “designed to be

‘non-partisan’ and ‘to act with entire impartiality’” (quoting Humphrey’s Ex’r, 295 U.S. at 624)).

The Board, like the FTC, is “predominately quasi judicial and quasi legislative” in nature, with

the primary responsibility of impartially reviewing decisions made by ALJs.  Humphrey’s Ex’r,

292 U.S. at 624; see 29 U.S.C. § 160.  In fact, the Board does not prosecute labor cases nor

enforce its rulings.  The side of the NLRB managed by the General Counsel—who is removable

at-will by the President—carries out those more “executive” powers.  See 29 U.S.C. § 153(d)

(describing the General Counsel’s “final authority, on behalf of the Board” over “the

13

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investigation of charges and issuance of complaints . . . and . . . the prosecution of such

complaints before the Board”).  As plaintiff correctly states, the Board closely resembles the

FTC and is thus “squarely at the heart of the rule adopted in Humphrey’s Executor.”  Pl.’s Mem.

at 9.

Numerous other offices have followed the mold of the NLRB and FTC with

multimember independent leadership boards protected from at-will removal by the President.

See Pl.’s Mem. at 7 n.2 (listing, e.g., the Merit Systems Protection Board, 5 U.S.C. § 1202(d); the

Federal Labor Relations Authority, 5 U.S.C. § 7104(b); and the Federal Energy Regulatory

Commission, 42 U.S.C. § 7171(b)(1)).  “Since the Supreme Court's decision in Humphrey’s

Executor, the constitutionality of independent  agencies, whose officials possess

some degree of removal protection that insulates them from unlimited and instantaneous political

control, has been uncontroversial.”  Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th

748, 760 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025); see

also The Pocket Veto Case, 279 U.S. 655, 689 (1929) (“Long settled and established practice is a

consideration of great weight in a proper interpretation of constitutional” issues of separation of

powers.).9

Recent consideration of the constitutionality of the removal protections for NLRB

members have accordingly upheld those constraints on presidential removal authority under

Humphrey’s Executor.  See, e.g., Overstreet v. Lucid USA Inc., No. 24-cv-1356, 2024 WL

5200484, at *10 (D. Ariz. Dec. 23, 2024); Company v. NLRB, No. 24-cv-3277, 2024 WL

Defendants protest the reliance on history and tradition because independent multimember commissions

9
date back only to the late 1880s.  Defs.’ Reply at 4-5.  “uch a practice comes far too late to provide reliable
evidence of the original public meaning of Article II or the Constitution’s separation of powers,” in defendants’
view.  Defs.’ Reply at 4-5.  That in no way invalidates the significance of longstanding tradition, however, which is
probative “ven when the nature of or longevity of  practice is subject to dispute, and even when that practice
began after the founding era.”  Noel Canning, 573 U.S. at 525; see id. at 528-29 (relying on a post- Civil War
practice of intra-recess appointments); CAC’s Amicus Br. at 11, ECF No. 15 (making this point).

14

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5004534, at *6 (W.D. Mo. Nov. 27, 2024); Kerwin v. Trinity Health Grand Haven Hosp., No.

24-cv-445, 2024 WL 4594709, at *7 (W.D. Mich. Oct. 25, 2024); Alivio Med. Ctr. v. Abruzzo,

No. 24-cv-2717, 2024 WL 4188068, at *9 (N.D. Ill. Sep. 13, 2024); YAPP USA Automotive Sys.,

2024 WL 4119058, at *7.  Courts have also recently upheld restrictions on removal under

Humphrey’s Executor for other multimember boards, such as the Consumer Product Safety

Commission (“CPSC”).  See, e.g., Leachco, 103 F.4th at 761-62; Consumers’ Rsch. v. CPSC, 91

F.4th 342, 352 (5th Cir. 2024); United States v. SunSetter Prods. LP, No. 23-cv-10744, 2024 WL

1116062, at *4 (D. Mass. Mar. 14, 2024).  The same has been true for the FTC.  See, e.g.,

Illumina, Inc. v. FTC, 88 F.4th 1036, 1046-47 (5th Cir. 2023); Meta Platforms, Inc. v. FTC, 723

F. Supp. 3d 64, 87 (D.D.C. 2024).  A court in this district has also upheld removal protections for

the Merit Systems Protection Board.  See Harris v. Bessent, No. 25-cv-412 (RC), 2025 WL

679303, at *7 (D.D.C. Mar. 4, 2025).  The 150-year history and tradition of multimember boards

or commissions and 90-year precedent from the Supreme Court approving of removal

protections for their officers dictates the same outcome for the NLRB here.

Defendants’ Argument that Humphrey’s Executor Does Not Control

2.
Fails.

Discounting this robust history, defendants posit that the President’s removal power is

fundamentally “unrestricted” and that only two, narrow “exceptions” have been recognized: one

for “inferior officers with narrowly defined duties,” as established in Morrison v. Olson, 487

U.S. 654 (1988), and the other for “multimember bod of experts, balanced along partisan

lines, that performed legislative and judicial functions and  exercise any executive

power,” as established in Humphrey’s Executor.  Defs.’ Opp’n at 5-6 (second passage quoting

Seila L., 591 U.S. at 216).  According to defendants, neither exception applies to the Board.  Id.

at 6.  Putting aside to address later whether congressional authority to constrain the President’s

15

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removal authority is characterized fairly by defendants as a narrow “exception” to the rule of

“unrestricted” removal power, see infra Part III.A.3.b, Humphrey’s Executor plainly controls.

Defendants emphasize that Humphrey’s Executor understood the FTC at the time not to

exercise any “executive power,” which was key to its “exception,” and that the NLRB today

clearly “wield substantial executive power.”  Defs.’ Opp’n at 6-8 (relying on Seila L., 591

U.S. at 216 n.2, 218); see also Defs.’ Reply at 3.  They do not, however, meaningfully

distinguish between the authority of the FTC in 1935, as recognized in Humphrey’s Executor,

and the authority of the NLRB today.  The FTC in 1935 had powers mimicking those of both the

Board and the NLRB’s GC.  The FTC had broad powers of investigation and could issue a

complaint and hold a hearing for potential unfair methods of competition.  See Humphrey’s Ex’r,

295 U.S. at 620, 621; see also 15 U.S.C. § 49 (authorizing the FTC’s subpoena power).  The

FTC, upon finding a violation, could issue a cease-and-desist order and then go to the Court of

Appeals for enforcement.  Humphrey’s Ex’r, 295 U.S. at 620-21; see also FTC Act, ch. 311, § 5,

38 Stat. at 719-20.  The party subject to the order could also appeal to that court.  Humphrey’s

Ex’r, 295 U.S. at 621.  Further, the FTC could issue rules and regulations regarding unfair and

deceptive acts.  See FTC Act, § 6, 38 Stat. at 722; Hon. R. E. Freer, Member of the FTC,

Remarks on the FTC, its Powers and Duties at 2 (1940),

https://www.ftc.gov/system/files/documents/public_statements/676771/19400827_freer_remarks

_._rational_association_of_credit_jewelers.pdf.

The NLRB’s collective authority, though comparable, see supra Part I.A (describing the

NLRB’s GC’s authority to investigate and pursue enforcement against unfair labor practices and

the Board’s adjudicatory authority and power to issue unenforceable cease-and-desist orders), is,

if anything, less extensive than that of the FTC.  The NLRB hardly engages in rulemaking (other

16

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than to establish its own procedures), instead relying on adjudications for the setting of

precedential guidance.  See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374

(1998) (“The , uniquely among major federal administrative agencies, has chosen to

promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”).

Moreover, the aspects of the NLRB’s authority most executive in nature—prosecutorial authority

to investigate and bring civil enforcement actions—are tasks assigned to the GC instead of the

Board itself.  See 29 U.S.C. § 153(d).10

Even though the Supreme Court of 1935 may have not referred to these classic

administrative powers as “executive” and the Supreme Court today would, see, e.g., Seila Law,

591 U.S. at 216 n.2, the substantive nature of authority granted to these two independent

government entities does not significantly differ.  If the Supreme Court has determined that

removal restrictions on officers exercising substantially the same authority do not impermissibly

intrude upon presidential authority, Humphrey’s Executor cannot be read to allow a different

outcome here.  That is especially true considering that the Supreme Court, in its next major

decision addressing removal protections for executive branch officers, rejected the notion that

the permissibility of “‘good cause’-type restriction . . . turn on whether or not th official”

Defendants suggest that because the NLRB makes “significant decisions shaping the rights and obligations

10
of Americans” and “set federal labor policy,” the “constitutional calculus” is different, and the Humphrey’s
Executor “exception” cannot apply.  Defs.’ Reply at 3, 5; Motions H’rg (Mar. 5, 2025), Rough Tr. at 54:1-7 (citing
NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990) (“he NLRB has the primary responsibility for
developing and applying national labor policy.”)).  Defendants do not, however, explain how applying federal law in
individual adjudications establishes “federal labor policy” any more than the rulemaking and adjudications of the
FTC in Humphrey’s Executor do, nor do they explain why subsequent caselaw—see supra Part III.A.3.a—should be
read as putting such a gloss on the holding of Humphrey’s.  Plaintiff contributed little to the debate about the scope
of the NLRB’s powers that may be considered “executive,” simply tying its authorities closely to the FTC in 1935,
despite the NLRB’s bifurcated structure, resulting in a more cabined exercise of any executive authority by the
Board itself.  See Pl.’s Reply at 3-5; see also Motions H’rg (Mar. 5, 2025), Tr. at 23:5-13 (plaintiff’s counsel stating,
“answering the question about exactly what ‘executive’ means and what those terms ‘quasi-legislative’ and
‘quasijudicial’ mean, it’s not the easiest thing in the world.  I think, for purposes of this motion that’s before you, I
think what matters is that . . . Humphrey’s Executor is binding.”).

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is classified as “purely executive” or exercising quasi-legislative or quasi-judicial functions.  See

Morrison, 487 U.S. at 689.11

Defendants make a final, superficial distinction between the NLRB and the FTC to argue

that the precedent of Humphrey’s Executor should not apply.  Defs.’ Opp’n at 10.  The NLRB,

they note, has stricter removal protections because its members cannot be removed for

“inefficiency,” whereas FTC members can.  Id.  In both Consumers’ Research, 91 F.4th at 346,

355-56, and Leachco, 103 F.4th at 761-63, however, courts of appeals upheld removal

protections that did not include an exception for “inefficiency.”  “Inefficiency” does not differ in

substance from “neglect of duty,” so omitting “inefficiency” as a grounds for removal cannot be

a dispositive difference in the President’s ability to exercise his Article II powers over the

NLRB.  See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and

the Statutory Limits of Agency Independence, 121 COLUM. L. REV. 1, 8, 69 (2021) (explaining

11
Defendants’ argument about the exercise of “executive power” is ultimately tautological and leaves
Humphrey’s Executor completely devoid of force.  They reason that because the NLRB is housed within the
executive branch, the Board inherently exercises “executive power.”  Defs.’ Opp’n at 7 (citing Seila L., 591 U.S. at
216 n.2 (quoting City of Arlington v. FCC, 569 U.S. 290, 305 n.4 (2013))).  Reading Humphrey’s Executor to allow
removal protections only for offices that do not exercise “executive power,” defendants then conclude that the
NLRB does not fit within Humphrey’s Executor.  The necessary implication of such reasoning is that no board or
commission placed with the executive branch could, as a constitutional matter, be legally subject to removal
protections duly enacted by Congress. Yet, defendants dodge that extraordinary result and contradictorily suggest
that removal protections on the Federal Reserve Board are acceptable because that Board does not exercise an
“executive function.”  Defs.’ Reply at 5; see also Motions H’rg (Mar. 5, 2025), Rough Tr. at 59-60 (defense counsel
declining to discuss Federal Reserve Board or the Federal Open Market Committee or why these entities should be
treated differently than the NLRB as to presidential removal power).

Recognizing that the exercise of “executive power” could not be dispositive, the Fifth Circuit in
Consumers’ Research agreed with the plaintiffs there that the CPSC “wields substantial executive power” but still
held that the CPSC was constitutional under Humphrey’s Executor.  91 F.4th at 353-55 (“Having concluded that the
Commission exercises substantial executive power (in the modern sense), we must next consider whether that
characteristic—standing alone—removes the Commission from the Humphrey's exception. We conclude that it does
not . . . .”).  The Fifth Circuit examined the other factors in Seila Law to conclude that the removal protections for
CPSC members were constitutionally sound: The CPSC does not have a novel structure or present a historically
unprecedented situation; the CPSC does not have a single director but rather a multimember board; and the CPSC
does not have any of the other features that concerned the Court in Seila Law, such as the receipt of funds outside
the appropriation process or the inability of the President to influence the office’s leadership through the
appointment power.  See id.

Regardless whether the NLRB exercises “substantial executive power,” “executive power,” or “quasi-

legislative and quasi-judicial power,” the NLRB does not sufficiently differ from the FTC to warrant a departure
from Humphrey’s Executor.

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that the absence of “inefficiency” as a ground for removal does not unconstitutionally interfere

with the President's authority).  Defendants offer no reason to suggest otherwise.  The NLRB fits

well within the scope of Humphrey’s Executor.

Defendants’ Argument that Humphrey’s Executor Has Been

3.
“Repudiated” and is No Longer Good Law Is Not Persuasive.

Fundamentally, the position of defendants and their supporting state amici urging this

Court not to apply Humphrey’s Executor stems from a reading of the Supreme Court’s

subsequent case law as “repudiat” the precedent.  Defs.’ Opp’n at 9 (quoting Seila L., 591

U.S. at 239 (Thomas, J., concurring in part)); Tennessee’s Amicus Br. at 7-10, ECF No. 18

(arguing forcefully that Humphrey’s Executor was wrongly decided and has been “narrowed . . .

nearly out of existence”); Twenty States’ Amicus Br. at 3-8, ECF No. 26.  Defendants therefore

argue that Humphrey’s Executor must be read extremely narrowly, despite that “whatever little

remains” is binding on this Court.  Defs.’ Opp’n at 8 n.2.  To the contrary, an unbroken line of

cases since Humphrey’s Executor has reinforced the constitutionality of removal restrictions on

multimember expert boards, and the pre-Humphrey’s Executor history demonstrates that this

decision was well-grounded in accepted principles of checks and balances.

Post-Humphrey’s Executor Case Law Reinforces its Central

a.
Holding.

In every case following Humphrey’s Executor, the Supreme Court has preserved the

constitutionality of removal protections on independent, multimember boards and commissions.

Shortly following Humphrey’s Executor, in Wiener v. United States, 357 U.S. 349 (1958), the

Court held that the Constitution did not grant the President authority to remove members of the

multimember War Claims Commission “for no reason other than that he preferred to have on

that Commission men of his own choosing.”  Id. at 355-56.  Thirty years later, in Morrison, the

Court again recognized the exception to the President’s removal power for officers with

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adjudicatory powers, but further explained that the permissibility of removal restrictions did not

turn on whether the officers’ functions were “quasi-legislative and quasi-judicial,” as opposed to

executive in nature, instead looking to the degree to which they impeded the President’s ability

to execute the laws.  See 487 U.S. at 691-93 (upholding removal protections for independent

counsel contained in the Ethics in Government Act).

Then, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477

(2010), the Court reiterated its holding in Humphrey’s Executor that “Congress can, under

certain circumstances, create independent agencies run by principal officers appointed by the

President, whom the President may not remove at will but only for good cause” and declined to

reexamine that precedent.  Id. at 483 (striking down double for-cause removal protections); see

also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667, 686 (D.C. Cir. 2008)

(Kavanaugh, J., dissenting) (describing the defendants as attempting to compare the office’s

removal protections to that of “the FCC, the FTC, and the NLRB,” which were understood to be

“permissible under the Supreme Court's 1935 decision in Humphrey’s Executor”).

Most recently, in Seila Law, the Supreme Court likewise declined to “revisit  prior

decisions allowing certain limitations on the President’s removal power.”  591 U.S. at 204.

While defendants make much of dicta in this decision, such as that the FTC’s powers would now

be considered executive, Defs.’ Opp’n at 9; see also Tennessee’s Amicus Br. at 9, Seila Law

made key distinctions between single-head offices and multimember boards or commissions that

reinforce why placing restrictions on removal of leaders of the latter is not problematic under our

Constitution, see 591 U.S. at 224-26.  Despite restrictions on removal, the President can exercise

more control over a multimember board through his appointment power as vacancies arise, and

with staggered terms, some Board vacancies arise during each administration.  See id. at 225.

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Those new appointees can restrain the Board member the President might otherwise prefer to

remove, and no President will be “saddled” with a single “holdover Director from a competing

political party who is dead set against” his agenda.  Id. at 225 (emphasis in original).  That is

particularly the case here, where President Trump could exercise near total control over the

NLRB by appointing two members of his choosing to the Board to join Mr. Kaplan, whom the

President appointed during his first term and recently elevated to Chairman, creating a majority

of Trump appointees, and by appointing a General Counsel of his choice.  See NLRB, Members

of the NLRB Since 1935, https://www.nlrb.gov/about-nlrb/who-we-are/the-board/members-of-

the-nlrb-since-1935 (last visited Mar. 5, 2025); 29 U.S.C. § 153(d) (allowing the General

Counsel to be removed at will).12

Moreover, the multimember structure prevents the public from being subject to decisions

made unilaterally by an unelected official, who could become captured by private interests.  The

distribution of power among several individuals on the Board “avoids concentrating power in the

hands of any single individual.”  Seila L., 591 U.S. at 222-23.  Lastly, unlike single-head offices,

entities led by multimember boards have a robust basis—more than even a “foothold”—in

“history  tradition.”  Id. at 222.  For these reasons, when the Court ultimately invalidated

the removal restrictions on the CFPB’s director as a single head of the bureau, Chief Justice

Roberts expressly suggested that “converting the CFPB into a multimember agency” would solve

“the problem.”  Id. at 237.13

12
Board appointees effectuate his agenda and has frozen the functioning of an important government office.

Instead, by bringing the Board to a complete halt, the President has foreclosed his own ability to see his

The Supreme Court’s most recent removal protections case, Collins v. Yellen, 594 U.S. 220 (2021), was

13
likewise about an office led by a single director, and the Court there reaffirmed it “did ‘not revisit  prior
decisions allowing certain limitations on the President’s removal power’” in Seila Law.  Id. at 250-51 (quoting Seila
L., 591 U.S. at 204).

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Finally, two months ago, the Supreme Court denied certiorari in Leachco, where the

Tenth Circuit upheld removal protections for commissioners on the Consumer Product Safety

Commission under Humphrey’s Executor—once again, declining to revisit that precedent.  See

103 F.4th 748 (10th Cir. 2024), cert. denied No. 24-156, 2025 WL 76435 (U.S. Jan. 13, 2025).

Presidential Removal Power Has Never Been Viewed as

b.
Unrestricted.

Defendants and their supporting states’ amici go even further in suggesting that not only

has Humphrey’s Executor been repudiated over time but the opinion was also wrong at the time

it was decided.  Defs.’ Opp’n at 8 n.2, 9; Tennessee’s Amicus Br. at 7; see Twenty States’

Amicus Br. at 6-7.  Defendants read Humphrey’s predecessor, Myers v. United States, 272 U.S.

52 (1926), as formalizing the President’s “unrestricted removal power,” which ultimately derives

from the “vesting” clause in Article II establishing a “unitary” executive.  Defs.’ Reply at 1-2

(first passage quoting Seila L., 591 U.S. at 215); Motions H’rg (Mar. 5, 2025), Rough Tr. at

30:22-31:4 (plaintiff’s counsel describing Myers as a “building block” in the unitary executive

theory).  They are again misguided.  While the Myers Court made clear that the President has a

general removal power for executive officials, defendants’ myopic focus on this case loses sight

of the limitations in its holding, a point driven home in Humphrey’s Executor decided less than a

decade later.  Nothing in the Constitution or the historical development of the removal power has

suggested the President’s removal power is absolute.  In fact, the history upon which Myers

relies and the immediately following Supreme Court decisions undercut any view that Congress,

when exercising its constitutional authority to shape executive offices, is completely barred from

conditioning the President’s exercise of his removal authority.

In Myers, Chief Justice Taft—the only person to have served both as the President and a

Justice of the Supreme Court—recounted and relied on the history of the Decision of 1789, a

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congressional debate about the President’s removal powers during the First Congress, to declare

unconstitutional a statute requiring the “advice and consent of the Senate” for both appointment

and removal of federal postmasters.  See 272 U.S. at 107, 111-36, 176-77.14  The First Congress

had created the first three executive departments, the Departments of Foreign Affairs, War, and

Treasury, and after much debate, ultimately granted plenary removal power to the President over

the Secretary of Foreign Affairs and crafted that agency to be an arm of the President.  Id. at 145;

see also Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM.

L. REV. 1, 25-29 (1994).  The First Congress did not make clear whether that decision—to grant

the President plenary removal authority over the Secretary of Foreign Affairs—derived from the

Constitution or rather was granted by Congress’s own prerogative.  See Myers, 272 U.S. at 285

n.75 (Brandeis, J., dissenting); Lessig & Sunstein, 94 COLUM. L. REV. at 26-28; Seila L., 591

U.S. at 271 (Kagan, J., dissenting in part and concurring in part) (“The summer of 1789 thus

ended without resolution of the critical question: Was the removal power ‘beyond the reach of

congressional regulation’?” (quoting Saikrishna Prakash, New Light on the Decision of 1789, 91

CORNELL L. REV. 1021, 1072 (2006))).  Some clarity in the First Congress’s view may be

gleaned, however, by the disparate approach that the Congress took with respect to the

Department of the Treasury.  Seeing the Treasury as a department less intrinsically tied to core

executive powers enumerated in Article II like that over foreign policy, Congress gave far more

direction to the structure of that department, specifying in detail its offices and functions and

granting independence from unfettered presidential removal power to the Comptroller.  See

Lessig & Sunstein, supra, at 27-28.  In short, the executive branch was not treated as strictly

The statute regarding removal of the postmasters read: “Postmasters of the first, second, and third classes

14
shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall
hold their offices for four years unless sooner removed or suspended according to law.”  Myers, 272 U.S. at 107.

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unitary, but rather as a branch with units of varying degrees of independence and generally

subject to congressional direction through checks and balances—including on its personnel.  See

John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939,

1964 n.135 (2011).

Chief Justice Taft in Myers cherry-picked only one portion of that 1789 story by

highlighting what the First Congress did with the Department of Foreign Affairs.  See 272 U.S.

at 113-36; Seila L., 591 U.S. at 277 (Kagan, J., dissenting in part and concurring in part)

(describing how scholars have “rejected Taft’s one-sided history”).  Despite the structure of the

Post Office far more closely resembling the Treasury Department of 1789 than the Department

of Foreign Affairs, Chief Justice Taft ignored the actual nuances reflected in the Decision of

1789 as to congressional power to condition the President’s removal power reflected in the

treatment of the new Treasury Department and instead read this history “through executive-

colored glasses” to support “his strong preconceptions” as former President “about presidential

removal power,” to reach the conclusion that a regional postmaster could not be subject to

removal protections.  Robert Post, Tension in the Unitary Executive: How Taft Constructed the

Epochal Opinion of Myers v. United States, 45 J. SUP. CT. HIST. 167, 172 & n.56 (2020) (first

passage quoting Hayden Smith to William H. Taft (Sep. 1, 1925) (Taft Papers)); Myers, 272 U.S.

at 176; Lessig & Sunstein, supra, at 25-30.15  Dicta in the lengthy Myers majority opinion made

broad pronouncements about the importance of the presidential removal power that were both

contradictory and inapposite: While Chief Justice Taft promoted the benefits of recognizing vast

15
Notably, Chief Justice Taft reached this conclusion over three dissents, including from Justices Holmes and
Brandeis.  Myers, 272 U.S. at 178-295.  Justice Brandeis, in particular, espoused a view of checks and balances that
emphasized the interdependence of the executive and legislative branches, vindicated in Justice Jackson’s
concurring opinion in Youngstown, 343 U.S. at 634.  See Myers, 272 U.S. at 240-95.

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presidential removal authority on one hand, he recognized that Congress could legislate around

appointment and removal of principal officers, in some circumstances, and inferior officers,

refusing to threaten protections for the civil service, on the other.  Id. at 127, 134-35, 161-62,

183, 186 (“here may be duties of a quasi judicial character imposed on executive officers and

members of executive tribunals whose decisions after hearing affect interests of individuals, the

discharge of which the President cannot in a particular case properly influence or control. . . .

  give to Congress the power to limit and regulate

removal of such inferior officers by heads of departments when it exercises its constitutional

power to lodge the power of appointment with them.”).16

Only nine years later, in Humphrey’s Executor, the Supreme Court—consisting of six of

the same justices who participated in the Myers decision (i.e., Justices Sutherland, Van Devanter,

Brandeis, Stone, McReynolds, and Butler)—unanimously retreated, denouncing the idea of

“illimitable” removal authority and disavowing Myers’ abundant dicta.  Morrison, 487 U.S. at

687 (“In Humphrey’s Executor, we found it ‘plain’ that the Constitution did not give the

President ‘illimitable power of removal’ over the officers of independent agencies.” (quoting 292

U.S. at 629)).  Justice Sutherland, who authored Humphrey’s despite joining the majority opinion

in Myers, limited Myers to “the narrow point” that “the President had power to remove a

postmaster of the first class, without the advice and consent of the Senate as required by act of

Congress” and wrote that other “expressions . . . are beyond the point involved and therefore do

not come within the rule of stare decisis.  In so far as they are out of harmony with the views

here set forth, these expressions are disapproved.”  Humphrey’s Ex’r, 292 U.S. at 626-27.

The bold position taken by the current administration, see Exec. Order No. 14215, 90 Fed. Reg. 10447

16
(2025), that the President has supreme control over all of his subordinates threatens to upend limits on the removal
power over inferior officers, expressly acknowledged in Myers.

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Humphrey’s Executor, consistent with the dissents in Myers, did not foreclose that the President

may have total authority over removal of some officials (like “high political officers,” Myers,

272 U.S. at 241 (Brandeis, J., dissenting)), but it made clear that his removal authority may

certainly be limited by Congress in other circumstances.17  Humphrey’s Ex’r, 292 U.S. at 629-

32.

The takeaway from Myers is therefore discrete and uncontroversial: While Congress may

structure executive branch offices via statute and legislate about the roles of executive branch

officers, including standards for their removal, Congress cannot reserve for itself an active role in

the removal decision.  The problem in Myers was that the statute required Senate advice and

consent to remove postmasters and that encroached on the presidential power of removal.  272

U.S. at 107.  It cannot be gainsaid that the President has the power of removal of executive

branch officers.  When Congress has statutorily provided a for-cause removal requirement, this

means that the President has the authority to determine whether the for-cause requirement

17
Justice Brandeis’s dissent in Myers was not so broad as to authorize Congress to restrict presidential
authority over removal of anyone in the executive branch.  See Myers, 272 U.S. at 240-42 (Brandise, J., dissenting).
Rather, he focused on the fact that the postmaster was an inferior officer, very unlike that of the Secretary of Foreign
Affairs, and the mischief that would result if the majority decision were read to endorse absolute presidential
removal authority for all officials.  Id. at 241, 247, 257 (“Power to remove, as well as to suspend, a high political
officer, might conceivably be deemed indispensable to democratic government and, hence, inherent in the President.
But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an
essential of government.”); see also id. at 181-82, 187, 193 (McReynolds, dissenting) (resisting Myers’ overbroad
dicta suggesting that all executive officers must serve at the pleasure of the President).  In the dissenters’ views, a
functional analysis into an office’s role and responsibilities—like that in Humphrey’s Executor—was necessary, but
only for principal officers.

In the face of the current administration’s push for a more absolutist presidential removal power, history
provides significant cautions: Protections for inferior federal officers came about to counter the extensive “spoils
system” that characterized the executive branch in the early 1800s—particularly during the presidency of Andrew
Jackson, whose controversial legacy is due in part to his association with widespread corruption.   See Myers, 272
U.S. at 276-83 (McReynolds, J., dissenting); id. at 272 U.S. at 250-52 (Brandeis, J., dissenting).  Congress having a
hand in executive appointments and removal was seen as an antidote to corruption.  Such provisions set the stage for
the development of the modern civil service system.  See id.; Katherine Shaw, Partisanship Creep, 118 NW. UNIV.
L. REV. 1563, 1573 & n. 48 (“ few decades after Andrew Jackson's administration, strong discontent with
the corruption and inefficiency of the patronage system of public employment eventuated in the Pendleton Act, the
foundation of modern civil service.” (quoting Elrod v. Burns, 427 U.S. 347, 354 (1976))).

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prescribed by Congress has been met.  As the Supreme Court has since repeatedly articulated,

“the essence” of “Myers was the judgment that the Constitution prevents Congress from

draw to itself the” power to remove.  Morrison, 487 U.S. at 686 (citing Bowsher v. Synar,

478 U.S. 714 (1986), for that interpretation).  That holding is completely compatible with

Humphrey’s Executor.  Little more can be gleaned from the unreliable historical retelling and

prolix Myers majority opinion.18

In short, neither the Founding-era history nor Myers can carry the heavy weight that the

current President has thrust upon it.  See Letter from Acting SG (“In Myers . . ., the Supreme

Court recognized that Article II of the Constitution gives the President an ‘unrestricted’ power of

‘removing executive officers.’”).  Neither supports the view that the President’s removal power

is “illimitable.”  Whatever the benefits of unrestricted removal authority under certain

circumstances, “he Framers did not constitutionalize presidential control over all that is now

considered ‘executive’; they did not believe that the President must have plenary power over all

we now think of as administration,” Lessig & Sunstein, supra, at 118, and neither did the early

twentieth century Supreme Court.

18
At the motions hearing, defense counsel argued that this interpretation of both Myers and Humphrey’s
Executor had been rejected by the Supreme Court in Seila Law, 591 U.S. at 228.  Motions H’rg (Mar. 5, 2025),
Rough Tr. at 62:1-17.  That is not so.  In Seila Law, amicus had distilled the Court’s precedent as follows:
Humphrey’s Executor and Morrison establish a general rule that Congress may impose “modest”
restrictions on the President’s removal power, with only two limited exceptions. . . . Congress may
not reserve a role for itself in individual removal decisions (as it attempted to do in Myers and
Bowsher). And it may not eliminate the President’s removal power altogether (as it effectively did
in Free Enterprise Fund). Outside those two situations, amicus argues, Congress is generally free
to constrain the President's removal power.

Seila L., 591 U.S. at 228 (emphasis in original) (internal citations omitted).  Rather than reject that reconciliation of
Myers and Humphrey’s Executor, the Court simply restated the principle, uncontroverted in either precedent, that
“the President’s removal power is the rule, not the exception,” id., and then declined to revisit these precedents or to
“elevate  into a freestanding invitation for Congress to impose additional restrictions on the
President’s removal authority,” id.  In other words, the Supreme Court neither constrained Humphrey’s Executor by
expanding Myers beyond its holding nor endorsed an expansion of Humphrey’s Executor itself.  In short, Seila Law,
on this matter, had frankly little to add.

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The holding in Humphrey’s Executor, that Congress could create boards or commissions

with elements of independence from the President, was therefore not at all a “fiction” or an

aberration, as defendants have supposed.  Defs.’ Opp’n at 9.19  Humphrey’s Executor, and thus

NLRB Board members’ removal protections, are consistent with the text and historical

understandings of Article II, as well as the Supreme Court’s most recent pronouncements.  That

Congress can exert a check on the President by imposing for-cause restrictions on the removal of

leaders of multimember boards or commissions is a stalwart principle in our separation of

powers jurisprudence.

c.

Humphrey’s Executor Remains Binding.

In any case, Humphrey’s Executor remains binding on this Court, as defendants rightly

acknowledge.  See Defs.’ Opp’n at 8 n.2; Illumina, 88 F.4th at 1047 (“he question of whether

. . . Humphrey’s Executor  no longer binding” is for the Supreme Court alone to answer.).  As

the Supreme Court has made clear, “f a precedent . . . has direct application in a case, yet

appears to rely on reasons rejected in some other line of decisions,” the lower courts should still

“leav to the  Court the prerogative of overruling its own decisions.”  Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also Nat’l Sec. Archive v.

CIA, 104 F.4th 267, 272 n.1 (D.C. Cir. 2024) (“This court is charged with following case law

that directly controls a particular issue, ‘leaving to  Court the prerogative of

overruling its own decisions.’” (alterations in original) (quoting Mallory v. Norfolk S. Ry. Co.,

Nor can Humphrey’s Executor be fairly described as an “exception[]” to the general rule of presidential

19
removal authority.  Contra Seila L., 591 U.S. at 198.  As explained, a careful reading of the history and the scope of
the dispute in Myers confirms that Humphrey’s Executor was not some exception to an otherwise absolute
presidential removal power previously established in Myers.  To the extent Myers extolled such an absolute
presidential removal power in overbroad dicta, it was in short order rejected by a unanimous Supreme Court.  Myers
simply established that the President alone may exercise removal authority over principal officers, and Humphrey’s
Executor explained that Congress can set standards, without conferring the exercise of that power to itself, to cabin
the President’s singular exercise of that authority in the circumstances presented.

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600 U.S. 122, 136 (2023))); Meta Platforms, 723 F. Supp. 3d at 87 (“It is certainly not this

Court’s place to deem a long-standing Supreme Court precedent obsolete . . . and thus no longer

binding.” (internal quotation marks and citation omitted)).  This Court would be bound to

conclude that plaintiff’s termination was unlawful even were the conclusion reached—and this

Court adamantly has not—that Humphrey’s Executor was, by today’s measure, ill-reasoned or

wrongly decided.

B.

Plaintiff is Entitled to Permanent Declaratory and Injunctive Relief.

For all of these reasons, plaintiff prevails on the merits and is therefore entitled to a

declaratory ruling that she was unlawfully terminated from her position as a member of the

Board.  Defendants concede as much.  Motions H’rg (Mar. 5, 2025), Rough Tr. at 71:23-72:1

(defense counsel stating, “We are not fighting this requested declaratory judgment.”).

Plaintiff further requests injunctive relief against Mr. Kaplan, ordering him to allow

plaintiff to carry out all of her duties.  Compl. at 7.  To demonstrate that injunctive relief is

warranted, a plaintiff must show that (1) she has suffered an irreparable injury, (2) remedies

available at law are inadequate to compensate, (3) a remedy in equity is warranted considering

the balance of the hardships to each party, and (4) the public interest is not disserved.  eBay Inc.

v. MercExchange LLC, 547 U.S. 388, 391 (2006).  Notwithstanding plaintiff’s success on the

merits, defendants contest her entitlement to injunctive relief.  Defs.’ Opp’n at 10.

1.

Plaintiff’s Irreparable Harm and Inadequate Remedies at Law

Plaintiff is suffering irreparable harm that cannot be repaired in the absence of an

injunction.20  Courts have recognized as irreparable harms the “unlawful removal from office by

the President” and “the obviously disruptive effect” that such removal has on the organization’s

20
2014); Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ), 2025 WL 665041, at *32 (D.D.C. Mar. 1, 2025).

These two factors are often considered together.  See, e.g., Ridgley v. Lew, 55 F. Supp. 3d 89, 98 (D.D.C.

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functioning.  Berry v. Reagan, No. 83-cv-3182, 1983 WL 538, at * 5 (D.D.C. Nov. 14, 1983),

vacated as moot, 732 F.2d 949 (Mem.) (D.C. Cir. 1983).  In Berry, terminated members of the

Civil Rights Commission challenged President Reagan’s decision to remove them.  Id. at *1.

The Commission was “left without a quorum,” and the court recognized as an irreparable injury

both the commission’s inability to “fulfill its mandate” and the individuals’ inability to serve

“Congress in the furtherance of civil rights.”  Id. at *5.  Likewise here, plaintiff has been

deprived of a presidentially appointed and congressionally confirmed position of high

importance, and both she and, by consequence, the NLRB have been deprived of the ability to

carry out their congressional mandate in protecting labor rights—which cannot be retroactively

cured by monetary damages.  See id.; Dellinger v. Bessent, No. 25-cv-385 (ABJ), 2025 WL

471022, at *11-13 (D.D.C. Feb. 12, 2025) (“he loss of the ability to do what Congress

specifically directed  to do cannot be remediated with anything other than equitable relief.”);

Harris v. Bessent, --F. Supp.3d--, No. 25-cv-412 (RC), 2025 WL 521027, at *7 (D.D.C. Feb. 18,

2025) (“By vindicating  right to occupy th office, th plaintiff[] act as much in 

own interests as those of  agenc. . . .  Striking at the independence of these officials

accrues harm to their offices, as well.”).21

Furthermore, plaintiff and the NLRB suffer an injury due to the loss of the office’s

independence.  As an entity entrusted with making impartial decisions about sensitive labor

21
Defendants argue that because President Trump could restore the NLRB’s quorum by appointing members
to fill the vacant seats, the harm here is not irreparable.  Defs.’ Opp’n at 14.  While filling the open seats would halt
the ongoing harm and prevent future harm, restoration of the NLRB’s quorum would not do anything to repair the
past harm—the backlog of cases, the months employers and employees have spent waiting for adjudications, the
practical ramifications felt across the country (from workers’ rights violations to workplace unrest) of labor disputes
left unresolved, delayed union recognition, and so forth.  The possibility that the NLRB could once again operate
may be one difference between this case and the situation of the Civil Rights Commission in Berry, where the
Commission was set to expire before it could fulfill its statutory mandate, see 1983 WL 538, at *5, but that
possibility does not make the harm here somehow reparable.  The NLRB’s statutory mandate is not to—at some
point in time—operate, contrary to defendants’ suggestion, Defs.’ Opp’n at 14-15, but rather to have an ongoing,
efficient administration of the country’s labor laws.

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disputes, the NLRB’s character and perception as neutral and expert-driven is damaged by

plaintiff’s unlawful removal.  See Humphrey’s Ex’r, 295 U.S. at 630 (“ coercive influence

 threatens the independence of a commission.”); Harris, 2025 WL

679303, at *13 (“he MSPB's independence would evaporate if the President could terminate

its members without cause, even if a court could later order them reinstated.”).  Money likewise

cannot make up for that kind of intangible and reputational harm.

Defendants argue that, regardless of the injury, plaintiff’s requested remedy—

reinstatement to her position—is one the Court cannot grant.  Defs.’ Opp’n at 11.  Not only have

all previous cases sought back pay instead of reinstatement, defendants point out, but also

reinstatement is not a remedy historically available at equity, which constrains the relief

available to the Court today.  Id. at 12 (citing Grupo Mexicano de Desarrollo S.A. v. All. Bond

Fund, Inc., 527 U.S. 308, 319 (1999)).  Plaintiff counters, however, that she does not request the

remedy of “reappointment” and does not need to be reinstated: She requests only a declaration

that the President lacked authority to remove her—making the termination email void ab initio—

and injunctive relief to enable her to carry out her position as before.  See Pl.’s Reply at 9.

Defendants do not challenge the Court’s ability to afford declaratory relief, but they do

challenge an injunction running against the executive branch, even against the President’s

subordinates, to permit plaintiff to carry out her duties.  Defs.’ Opp’n at 11, 13.  They contend

that such relief would effectively “compel[]” the President “to retain the services of a principal

officer whom he no longer believes should be entrusted with the exercise of executive power.”

Defs.’ Opp’n at 11; see also Defs.’ Reply at 7-8.  At most, however, this argument simply

restates defendants’ position on the merits, because, as a general matter, courts undoubtedly have

authority to constrain unlawful presidential action by enjoining the President’s subordinates.

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See, e.g., Youngstown, 343 U.S. at 582, 589 (holding a presidential act unconstitutional and

affirming the district court judgment which restrained Secretary of Commerce); Chamber of

Com. v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (“t is now well established that ‘eview

of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the

officers who attempt to enforce the President's directive.’  Franklin v. Massachusetts, 505 U.S.

788, 815 (1992) (Scalia, J., concurring in part and concurring in the judgment).  Even if the

Secretary were acting at the behest of the President, this ‘does not leave the courts without power

to review the legality , for courts have power to compel subordinate executive

officials to disobey illegal Presidential commands.’  Soucie v. David, 448 F.2d 1067, 1072 n. 12

(D.C. Cir. 1971).” (alterations in original)); Dellinger v. Bessent, No. 25-5028, 2025 WL

559669, at *6 n.1 (D.C. Cir. Feb. 15, 2025) (noting that a court “can unquestionably review the

legality of the President’s action by enjoining the officers who would attempt to enforce the

President’s order”).

Moreover, the D.C. Circuit has held such relief is appropriate in this type of employment

context: A court may, by targeting a President’s subordinates, “reinstate a wrongly terminated

official ‘de facto,’ even without a formal presidential reappointment” that would require

injunctive relief against the President himself.  Severino v. Biden, 71 F.4th 1038, 1042-43 (D.C.

Cir. 2023) (holding that the plaintiff’s injury was therefore redressable); cf. Swan v. Clinton, 100

F.3d 973, 980 (D.C. Cir. 1996) (holding that plaintiff’s claim was redressable because injunctive

relief against inferior officials, who could de facto reinstate plaintiff by allowing him to exercise

the privileges of his office, would remedy plaintiff’s harm); see also Harris, 2025 WL 679303, at

*10-12 (holding that the court can order such relief to remedy an unlawful termination and

relying on Swan and Severino);  Dellinger v. Bessent, --F. Supp. 3d--, No. 25-cv-385 (ABJ),

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2025 WL 665041, at *29-31 (D.D.C. Mar. 1, 2025) (same).  The Court therefore has the

authority to issue both the declaratory and injunctive remedies that plaintiff seeks.22

2.

Balance of the Equities and the Public Interest

The balance of the equities and the public interest also favor injunctive relief here.  See

Nken v. Holder, 556 U.S. 418, 435 (2009) (noting that, where the government is a party, “hese

two factors merge”).  The public has an interest in efficient and peaceful resolution of labor

conflicts, and the Board’s functioning is crucial to that goal.  In 2024, the NLRB received 20,000

to 30,000 unfair labor practice charges, and the Board reviewed 144 unfair labor practice cases

22
Defendants’ arguments that plaintiff may not be “reinstated” or “reappointed” because reinstatement was
not a remedy originally available at equity are not only inconsequential because relief need not be fashioned in that
form, as described above, but they are also flawed.  Defendants’ argument ultimately boils down to a technical
distinction: Historically, requests for reinstatement were styled as writs of mandamus or quo warranto before courts
of law instead of requests for injunctions before courts of equity, as defendants’ cited cases reflect.  Defs.’ Opp’n at
12; Twenty States’ Amicus Br. at 3; see In re Sawyer, 124 U.S. 200, 212 (1888) (noting that while a court of equity
does not have “jurisdiction over the appointment and removal of public officers, . . . the courts of law, . . . either by
certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo
warranto” do); White v. Berry, 171 U.S. 366, 377 (1898) (same).  After the merger of law and equity in the federal
courts over eighty years ago, however, that distinction makes no difference and does not render improper the
injunctive relief plaintiff requests.

Unsurprisingly, many courts have, therefore, reinstated federal employees to their positions or prevented

their removals from taking effect.  See, e.g., Vitarelli v. Seaton, 359 U.S. 535, 546 (1959) (“etitioner is entitled to
the reinstatement which he seeks.”); Pelicone v. Hodges, 320 F.2d 754, 757 (D.C. Cir. 1963) (holding that plaintiff
was “entitled to reinstatement”); Paroczay v. Hodges, 219 F. Supp. 89, 94 (D.D.C. 1963) (holding that, because
plaintiff “was never legally separated,” the court “will therefore order plaintiff’s reinstatement”); Berry, 1983 WL
538, at *6 (enjoining removal of members of the U.S. Commission on Civil Rights); cf. Sampson v. Murray, 415
U.S. 61, 92 n.68 (1974) (acknowledging that “se of the court’s injunctive power” may be appropriate in certain
cases regarding discharge of employees).  The other cases cited by defendants for the principle that reinstatement is
not available as equitable relief, Defs.’ Opp’n at 12, involve the unique situation of federal courts presiding over
questions about state officers’ entitlement to their positions, which is wholly inapplicable here.  See Baker v. Carr,
369 U.S. 186, 231 (1962) (citing cases about “enjoin a state proceeding to remove a public officer”); Walton v.
House of Representatives of Okla., 265 U.S. 487, 489-90 (1924) (holding that the district court did not have
“jurisdiction over the appointment and removal of state officers”); Harkrader v. Wadley, 172 U.S. 148, 165-70
(1898) (declining to enjoin a state criminal proceeding); see also Twenty States’ Amicus Br. at 16-17 (making the
inapposite argument that imposing a remedy of reinstatement of state officers invades state sovereignty).

In any case, the D.C. Circuit has “note that a request for an injunction based on the general federal

question statute is essentially a request for a writ of mandamus in this context, where the injunction is sought to
compel federal officials to perform a statutorily required ministerial duty.”  Swan, 100 F.3d at 976 n.1.  Indeed,
plaintiff made a last-minute request in her Notice of Supplemental Authority, ECF No. 33 at 4, for a writ of
mandamus in the alternative.  A writ of mandamus requires that “(1) the plaintiff has a clear right to relief; (2) the
defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.”  Id. at 4 n.1
(alteration accepted) (quoting In re Nat’l Nurses United, 47 F.4th 746, 752 n.4 (D.C. Cir. 2022) (citation omitted)).
Accordingly, if injunctive relief were not available here because of adherence to the historical dividing lines of law
and equity, a writ of mandamus would likely be available, and the effective relief provided to plaintiff would be the
same.  See Harris, 2025 WL 679303, at *11.

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and 115 election certification cases.  See Nineteen States & D.C.’s Br. at 7, ECF No. 31 (citing

NLRB, Investigate Charges, https://perma.cc/CU82-KU4V; NLRB, Board Decisions Issued,

https:www.nlrb.gov/reports/agency-performance/board-decisions-issued (last visited Feb. 24,

2025)).  Without a functioning NLRB, unfair labor practices go unchallenged, union elections go

unrecognized, and pending labor disputes go unreviewed.  See Pl.’s Mem. at 12 (providing one

example where Whole Foods has refused to recognize a union election because it claims the

NLRB lacks the authority to certify it); Pl.’s Reply at 12 (citing an additional example where

CVS has refused to recognize a majority elected union).  Incentives to comply with national

labor law may be severely undercut if no agency is available for enforcement.  Employees,

employers, and bargaining units all suffer as a result.  The public also has an interest in the

protection of duly enacted, constitutional laws—like the NLRA—from encroachment from other

branches.  See League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“here is a

substantial public interest ‘in having governmental agencies abide by the federal laws that

govern their existence and operations.’” (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th

Cir. 1994))).  Reinstating plaintiff would allow the NLRB to reach a quorum, thereby allowing

the Board to carry out the important work in promoting labor stability, adjudicating labor

disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.23

Defendants protest that the President will indeed experience harm—by virtue of retaining

“a principal officer whom the President no longer believes should be entrusted with the exercise

of executive power,” resulting in the executive branch “slip from the Executive’s control,

and thus from that of the people.”  Defs.’ Opp’n at 15 (second passage quoting Free Enter. Fund,

As plaintiff’s supporting state amici point out, a less partisan Board, insulated from at-will removal, is less

23
likely to whipsaw the public by taking completely disparate approaches every four years, which has concomitant
public benefits in greater stability and predictability in administration of the law.  See Nineteen States & D.C. Br. at
9 n.21.

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561 U.S. at 499).  Yet, President Trump can exercise control over the NLRB by appointing two

members of his choosing to the vacant seats and appointing a General Counsel who will adopt

his enforcement priorities; he simply has chosen not to do so.  In any case, whether the public

will benefit more from the balance Congress has struck in preserving some independence from

political whims in the administration of our national labor laws or from complete executive

control goes to the core of the constitutional question underlying the merits—and thus the answer

is dictated by binding precedent.

Finally, defendants predict their ultimate success before the Supreme Court, warning that

if plaintiff is allowed to resume her duties on the Board now, any NLRB decisions in the

meantime may be voidable, and “the NLRB will be under a heavy cloud of illegitimacy.”  Defs.’

Reply at 9; see also Defs.’ Opp’n at 16; Twenty States’ Amicus Br. at 16 (suggesting that

“reinstatement hampers effective governance” by causing “intra-office ‘chaos’” and questions

about the fitness of the official).  The possibility of future changes in the law is not enough,

however, to permit an unlawful termination and the halting of all Board activity in the meantime.

Plaintiff’s wrongful termination has caused “chaos” enough and shall not be allowed to stand

based on defendants’ self-serving speculation.

IV.  CONCLUSION

The President seems intent on pushing the bounds of his office and exercising his power

in a manner violative of clear statutory law to test how much the courts will accept the notion of

a presidency that is supreme.  Defendants cite in their briefing Trump v. United States, 603 U.S.

593, 608-09 (2024) (granting the President absolute and presumptive immunity from criminal

liability for “official acts”), to argue that the removal power is “conclusive and preclusive,” with

the result that the President need not be subject to criminal or civil legislative constraints.  Defs.’

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Reply at 7.  The courts are now again forced to determine how much encroachment on the

legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that

is untouchable by the law.  The President has given no sufficient reason to accept that path here.

Humphrey’s Executor and its progeny control the outcome of this case and require that

plaintiff be permitted to continue her role as Board member of the NLRB and her termination

declared unlawful and void.  The Constitution and caselaw are clear in allowing Congress to

limit the President’s removal power and in allowing the courts to enjoin the executive branch

from unlawful action.  Defendants’ hyperbolic characterization that legislative and judicial

checks on executive authority, as invoked by plaintiff, present “extraordinary intrusion on the

executive branch,” Defs.’ Opp’n at 1, is both incorrect and troubling.  Under our constitutional

system, such checks, by design, guard against executive overreach and the risk such overreach

would pose of autocracy.  See Myers, 272 U.S. at 293 (Brandeis, J., dissenting).  An American

President is not a king—not even an “elected” one24—and his power to remove federal officers

and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate

circumstances, as are present here.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date:  March 6, 2025

__________________________
BERYL A. HOWELL
United States District Judge

24
other branches in checking President’s authority).

Motions H’rg (Mar. 5, 2025), Rough Tr. at 43:9 (plaintiff’s counsel highlighting the constitutional role of

36

