In a 7-4 en banc order, the U.S. Court of Appeals for the D.C. Circuit set aside the recent ruling by a three-judge panel that ignored binding Supreme Court precedent in affirming President Trump’s firing of National Labor Relations Board member Gwynne Wilcox and Merit Systems Protection Board member Cathy Harris. The D.C. Circuit’s en banc order means that Wilcox and Harris can return to their previous roles for now—unless the Supreme Court acts on the cases.
The en banc majority was sharply critical of the earlier three judge panel’s decision, noting the existing Supreme Court precedents contrary to the decision and saying, “the Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until the Court itself changes it or overturns it.” The order almost certainly tees up another Supreme Court showdown over the constitutionality of congressional limits or conditions on the authority of the President to fire the heads of independent agencies, boards, and commissions.