Overview
Independent agencies—generally speaking, federal agencies that are controlled by multimember, non-partisan boards or commissions whose members enjoy statutory for-cause removal protection—are a fixture in Washington, DC. They deal with everything from energy policy to labor relations, and are structured to be somewhat insulated from shifting political winds as administrations turn over. Established by statute, their constitutionality has not generally been in question thanks to a New Deal-era Supreme Court case (Humphrey's Executor).1 Until now.
On May 22, 2025, the US Supreme Court issued a temporary ruling in Trump v. Wilcox2 granting a stay that permitted President Trump to fire commissioners of two independent agencies, the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). The Court emphasized its ruling is only temporary, and made sure to carve out one agency (the Federal Reserve). But the case signals that many different independent agencies may ultimately need to be restructured to pass constitutional muster or will become less "independent" and more akin to executive departments, with the chance that, in the interim, the administration may seek to substantially change their composition.
The Dispute: From day one, the Trump Administration has been clear that it planned to test the limits of its power over independent agencies. On January 27, 2025—less than a week after he took office—President Trump removed Gwynne Wilcox, Chair of the National Labor Relations Board, from office without cause, prior to the expiration of her term, and contrary to statute. Shortly thereafter, on February 10, 2025, President Trump removed Cathy Harris, also without cause, prior to the expiration of her term, and contrary to statute, as a member of the Merit Systems Protection Board.
Both Wilcox and Harris sued and sought reinstatement into their roles. The crux of their claims rested on Humphrey's Executor's holding that Congress could restrain a President's ability to remove, expect for cause, the members of a multimember, partisan-balanced commission or board that perform a mixture of judicial and legislative (and not "purely executive") functions.3 Both Wilcox and Harris asserted that President Trump's efforts to remove them was squarely addressed, and precluded, by this holding. After a tortured path through the lower courts—both Wilcox and Harris initially prevailed before the district court, were rebuffed by a DC Circuit Panel, and later succeeded before the DC Circuit sitting en banc—Wilcox and Harris found themselves before the Supreme Court.
The Court's Ruling: On April 9, 2025, the Trump Administration asked the Court to stay the effect of district court orders directing that Wilcox and Harris be reinstated. Chief Justice John Roberts granted a short-term administrative stay that same day. On May 22, 2025, the Court formally granted the Trump Administration's stay request, extending its previously issued administrative stay while litigation continued below.
In its two-page holding, the Court acknowledged that that the removal of Wilcox and Harris appeared to be contrary to statute,4 but side-stepped any discussion of Humphrey's Executor in its analysis. Instead, the Court found "that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power." And, under the Court's more recent holding in Seila Law LLC v. CFPB (reinforced separately in Collins v. Yellen),5 that would mean these statutory removal restrictions likely intrude upon the Executive's authority and would be unlawful. Therefore, the Court granted the stay pending further litigation, but emphasized that it was not pre-determining any future outcome on the merits. The lengthier dissent—authored by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Justice Ketanji Brown Jackson—emphasized that the majority opinion hints at "a massive change in the law—reducing Humphrey's to nothing and depriving members of the NLRB, MSPB, and many other independent agencies of tenure protections."6
The net effect of the Court's May 22, 2025, holding is that, at least for now, both plaintiffs cannot rejoin their respective agencies.
What It Means: Since it was issued some 90 years ago, the scope of the Humphrey's Executor holding has been narrowed by the Court, most recently in the aforementioned Seila Law LLC v. CFPB and Collins v. Yellen. Narrowed, but never overturned. The Court's May 22 order appears to continue this trend, and, as the dissent notes, may even signal the death knell of the decision. But the procedural posture of the May 22 order, and some unusual features of the Court's order, are in tension with that conclusion.
To start, the May 22 order does not, on its own terms, purport to overrule Humphrey’s Executor. In fact, at no point in its analysis does the majority even mention that decision—citing instead to Seila Law LLC v. CFPB for authority. And, as pointed out in the dissent, the procedural posture of the Trump Administration's petition (an emergency application for a stay pending appeal) would normally counsel against that inference, because it would be unusual for the Court to overturn settled precedent while granting relief. Further, the Court signaled that it believed there were still valid restrictions on the President’s removal powers. To this end, the Court specifically carved out members of the Federal Reserve from its holding based on the "distinct historical tradition of the First and Second Banks of the United States." It is unclear to what other independent agencies might also benefit from protection on these grounds.
So where do we stand now? Humphrey's Executor may still be "good law," but it is clear the Court believes it does not constrain the President's removal powers in all but the rarest of circumstances. Given the Court's strong signal that Humphrey's Executor will be sharply curtailed (if not entirely overruled) when it inevitably comes before the Court again, the Trump Administration may wait for a clear path forward before acting. But it may not. The temporary order may be a signal that the administration can begin aggressively removing independent agency members, and those who routinely practice before independent agencies should carefully consider how the composition of those agencies' leadership may change in the months to come.
1 Humphrey's Executor v. United States, 295 U.S. 602 (1935).
2 Trump v. Wilcox, 605 U. S. ____ (2025).
3 Humphrey's Executor, 295 U. S., at 628, 631; see Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197, 204, 216–217 (2020).
4 Trump v. Wilcox, 605 U. S. ____ (2025) ("The President is prohibited by statute from removing these officers except for cause, and no qualifying cause was given.")
5 Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 197 (2020), Collins v. Yellen, 594 U.S. 220 (2021).
6 Dissent at 5.
