Two reinstated National Credit Union Administration (NCUA) board members participated in a board meeting on July 24, even as the Supreme Court signaled that three Democratic members of the Consumer Product Safety Commission (CPSC) could be fired without cause in the context of granting a stay of a lower court order reinstating them to CPSC.
Judge Amir H. Ali, of the U.S. District Court for the District of Columbia determined that the Democrat NCUA board members Todd Harper and Tanya Otsuka could only be removed for cause. Trump had fired them without cause and, thus, Judge Ali ruled that Trump had fired them illegally.
Because no stay of Judge Ali's order had yet been granted, Harper and Otsuka participated in the July 24 NCUA board meeting. Harper joked about his absence from the board, saying, "It's been three months. Have I missed anything?"
Otsuka made additional comments about her absence from the board, focusing on the need for an independent agency. She said the ability for the NCUA board to function as a regulator "depends on a strong independent agency that focuses on the long-term safety and stability of our financial system."
She said she is planning to examine the actions of the agency while she and Harper had been absent, adding, "I am glad to be back to work with my fellow board members."
In the Supreme Court case, CPSC commissioners Mary Boyle, Alexander Hoehn-Saric, and Richard Trumka, appointed by President Biden, filed suit after they were fired by Trump. They argued that they could be fired only for "neglect of duty or malfeasance in office." U.S. District Judge Matthew Maddox of the District of Maryland agreed and ordered that they be reinstated, citing Humphrey's Executor v. United States in which the Supreme Court ruled that Congress can create independent agencies with members who can only be removed for cause.
After the Fourth Circuit declined to stay that order, the Administration sought emergency review by the Supreme Court.
The Supreme Court disagreed in a short order, citing Trump v. Wilcox, a case in which it stayed district court orders reinstating Democratic members of the National Labor Relations Board and the Merit Systems Protection Board who had been fired by Trump pending the disposition of those cases on appeal.
The Supreme Court said that the Trump Administration did not have to reinstate the three CPSC commissioners while the litigation continues.
The court said that the decision it issued in Wilcox "reflected our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty."
The court has issued interim orders in these cases. The court said that although its interim orders are not conclusive, they provide guidance about how a court should exercise its discretion in similar cases.
The court's three liberal Justices, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented.
"Once again, this Court uses its emergency docket to destroy the independence of an independent agency, as established by Congress," Kagan wrote.
She continued, "By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress's choice of agency bipartisanship and independence."
In yet another case, a three-judge panel of the Circuit Court of Appeals for the District of Columbia has put on hold a District Court ruling that would have allowed Rebecca Slaughter to return as a commissioner of the FTC.
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