Future Potential Changes in Civil Service
Perhaps an indicator of the interest and importance of this case can be inferred from the pages of lawyers listed early in the case write-up who have been involved in pursuing this case.
According to the Court of Appeals for the Federal Circuit, the appeals in this case present the question of whether Congress may constitutionally “prohibit the President from removing members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) without cause. The district courts upheld the constitutionality of statutory removal protections for members of these boards.”
As noted in an earlier FedSmith article, the Supreme Court made this statement regarding an earlier appeal in the MSPB case:
Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents….The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.
Reducing Civil Service Protection for Some Federal Appointees
The case before the DC Court of Appeals concerns the President’s removal of Cathy A. Harris, a member of the Merit Systems Protection Board (MSPB). Her removal occurred before the expiration of her statutory term in 2028. The government did not attempt to justify the removal under the statutory “for-cause” standards, which include inefficiency, neglect, or malfeasance.
- In the district court, Harris filed a lawsuit seeking reinstatement. The court granted a temporary restraining order and subsequently issued a summary judgment in her favor. The judgment declared the removal unlawful and permanently enjoined agency officials from carrying it out. In essence, the court ordered the government to treat Harris as though she had never been removed.
- The US Supreme Court overturned the stay issued by the DC District Court.
- The government appealed the decision of the district court. The appeal is consolidated with a companion case involving another independent-agency official from the National Labor Relations Board (NLRB), Gwynne A. Wilcox. The companion case involves a similar removal and challenge.
This dispute raises a constitutional question: whether statutory for-cause removal protections for members of independent, multi-member adjudicatory agencies such as the MSPB (and the NLRB) are compatible with the President’s Article II removal powers under the American Constitution.
The Court’s Decision
The U.S. Court of Appeals for the District of Columbia issued a divided decision on December 5, 2025, in Cathy A. Harris v. Bessent ruling that President Trump lawfully removed Cathy Harris from the MSPB and Gwynne Wilcox from the NLRB without cause.
The panel, in a 2-1 opinion, argued on May 16, 2025, held that statutory restrictions limiting removals to “inefficiency, neglect of duty, or malfeasance” are unconstitutional for these agencies, as both exercise significant executive power. The government did not allege such cause for the February 2025 dismissals but argued presidential removal authority overrides the limits, aligning with Supreme Court precedents cited in the decision.
Here are the key highlights:
- Core Ruling: The majority found MSPB and NLRB wield “considerable executive power” in adjudicating employee appeals, supervising unions, and enforcing merit principles, making for-cause protections incompatible with Article II.
- Supreme Court Influence: Cited a May 2025 per curiam stay likely deeming the restrictions unconstitutional, vacating prior panel stays, and enabling Trump’s actions during litigation.
- Judge Walker, writing for the majority, argued the agencies’ quasi-judicial roles justify independence, distinguishing them from pure executive officers.
- The NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial. So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.
- Congress may restrict the President’s ability to remove principal officers who wield only quasi-legislative or quasi-judicial powers….Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power.
What the Decision Did Not Address
There are several issues this decision did not address. As noted by the court:
- First: “[W]e do not decide whether Congress may restrict the President’s ability to remove officers with solely adjudicatory functions.
- Second, the court wrote “[D]espite multiple amicus briefs focused on this point, we do not address whether Congress may restrict the President’s ability to remove members of the Board of Governors of the Federal Reserve System.”
- Third, “[B]ecause we hold that the President permissibly removed Wilcox and Harris, we do not consider whether wrongfully removed principal officers may obtain declaratory, equitable, or mandatory relief against the President or other government officials.”
Why It Matters — Potential Impact on the Federal Workforce
When there is a final decision in this case, probably issued by the US Supreme Court, the case will likely impact the federal workforce. It will determine a president’s ability to remove some appointees, such as the two people in positions in this case.
As outlined below, it may also create appeals potentially more sensitive to political pressure, as some appointments, such as those at the MSPB, often result in appointees reflecting the political views of the president making the appointment rather than those of the next president.
Those opposed to the Court of Appeals’ position in this en banc decision argue that it will expand executive authority over independent agencies, reduce MSPB’s quorum, and delay federal employee appeals of firings, RIFs, and whistleblower claims.
Any protection that assumes agency heads or board members can only be removed “for cause” becomes weaker when courts say those limits are unconstitutional for certain posts. That includes:
- Safeguards are designed around independent labor boards (such as MSPB and NLRB), which are intended to make politically neutral decisions on terminations, RIFs, and unfair labor practices.
- Structural protections that were meant to buffer civil servants from partisan swings in the White House.
When those roles become effectively at-will, presidents gain more leverage to appoint compliant leadership, which can chill aggressive enforcement of employee protections.
Plans such as “Schedule F” or large-scale removals of career staff become easier to carry out if the boards that normally review mass firings are more politically dependent. In practice, that most endangers:
- Senior and policy-adjacent civil servants whose jobs are easiest to relabel as “policy-related.”
- Employees in agencies that have adversarial relationships with the administration’s priorities.
Even if courts later find individual removals illegal, delays and weakened review bodies reduce the real-world value of those protections during the period when employees are out of work.
This weakens merit system protections, enabling faster workforce reductions amid broader actions like Schedule F revivals targeting tens of thousands of civil servants for at-will dismissal.
Curbing the Deep State
On the other hand, while there is concern about creating a more political federal workforce, the Trump administration has cited a “deep state” in government that needs to be restrained.
In his first term, White House Press Secretary Sean Spicer noted, “there’s no question when you have eight years of one party in office … that there are people who stay in government” and “may … want to continue to seek” the prior administration’s agenda. That was a public acknowledgment that the administration saw long-term career staff (i.e. civil servants) as part of a “deep state.”
Over his presidency (and after), Trump and his allies used “deep state” language in speeches, posts, and statements to refer to the bureaucracy — portraying career federal employees as an entrenched group undermining his agenda.
Commentators and scholars also cite the administration’s rhetoric broadly: for example, one analysis says Trump often “complained about the ‘deep state’ of career civil servants who, he asserted, were determined to undermine his presidency.”
Conclusion
The final outcome of this case remains far from being final, but it could reshape some core aspects of how the federal civil service is governed. The Supreme Court may have given some indication of what a possible decision would look like by referencing the power of the president to remove some appointees “subject to narrow exceptions”.
We do not know if this case will reach the Supreme Court. If it does, that means the final decision will not be revealed in the immediate future. Based on the decisions that have been issued so far, the direction has been to uphold a more expansive power for the president in removing appointees with the authority to exercise executive power.
