“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Judge Justin Walker, nominated by Donald Trump to the federal court of appeals for the District of Columbia Circuit, cast the deciding vote in a 2-1 ruling that stayed lower courts and approved for now Trump’s summary firing of independent federal board members who decide cases on employees’ rights. The 2-1 majority in the case, including conservative Bush I nominee Karen LeCraft Henderson, recognized that their ruling contradicted some previous Supreme Court precedent protecting appointees of such independent agencies. The March 2025 decision is in Harris v Bessent.
What happened in this case?
In January and February 2025, President Trump fired without cause members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). These agencies adjudicate cases and related disputes concerning employees’ rights, relating to such issues as protecting employees against improper firing because they participate in union organizing efforts. According to federal statute, these members were nominated by the President, confirmed by the Senate, and can be removed by the President only “for cause.”
Each of the fired Board members filed suit in federal district court contesting their removal. In both cases, the district court agreed with the board members and granted summary judgment in their favor, directing that they be returned to their positions. The government appealed both cases, claiming that the statutory limits on removal are “unconstitutional infringements” on the President’s removal authority. The government sought a stay of the lower court rulings while the cases are being appealed.
How did the appeals court decide and why was Judge Walker’s opinion dangerous?
In a brief unsigned order, the DC Circuit granted the government’s motion for a stay by a 2-1 vote. Each of the three participating judges wrote a separate opinion, including Judges Walker and Henderson in the majority and Obama nominee Judge Patricia Millett in dissent.
Walker wrote an opinion of almost fifty pages strongly agreeing with the far right view that the President has absolute and “unrestricted” authority over executive branch officials, including with respect to agencies that Congress has sought to insulate from such presidential control. He claimed that the history of unrestricted presidential removal authority goes all the way back to the founding era, and that the court has largely disavowed earlier precedents that recognize Congress’ authority to impose “for cause” limits on removal of some officials. He concluded that a stay should be granted since the government is “likely to prevail” on the merits and will be injured without a stay because “the President suffers irreversibly each day” he is “deprived” of the authority to fire executive officials at will. Judge Henderson largely agreed but noted that the case is a “slightly closer call” to be resolved on appeal.
Judge Millett issued a strong dissent. She wrote that the two majority opinions “rewrite controlling Supreme Court precedent’ and “ignore binding rulings” of the DC Circuit. Indeed, she pointed out, the stay decision improperly marks “the first time in history” that an appellate court has allowed “the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.”
Judge Millett also explained the serious harm that the stay decision will cause. By removing one board member from each agency, she wrote, the ruling will deprive both of a quorum to conduct business. The result, she went on, “will leave languishing hundreds of unresolved legal claims” and “trap in legal limbo millions of employees and employers whom the law says must go to these boards for the resolution of their employment disputes.”
This case will continue in the court of appeals and may well go to the Supreme Court. Even as of now, however, Walker’s ruling will cause significant damage to both employees and employers across the country who depend on rulings by the NLRB and the MSPB. In the longer run, if Walker’s opinion prevails, Congress will lose the crucial authority to protect agency officials, in these and other agencies, from arbitrary removal by the President. The case also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.