As the U.S. Supreme Court prepares for Monday’s oral arguments, a pivotal 90-year-old precedent on firing protections is under scrutiny. The federal appeals court in Washington, D.C., with a 2-1 majority of judges appointed by former President Donald Trump, has overturned lower court decisions, permitting the removal of Democratic members from two independent agencies.

Judges Neomi Rao and Gregory Katsas, both appointed by Trump, led the D.C. Circuit’s decision, asserting that despite congressional efforts to limit executive power, the president retains the authority to dismiss members of the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB) without needing a specific cause.

In his majority opinion, Katsas argued that Congress cannot curtail the president’s power to remove principal officers with significant executive roles. This view contrasts with the lower courts and suggests that NLRB member Gwynne Wilcox and MSPB Chair Cathy Harris wield powers that are inherently executive, differing from the quasi-legislative or quasi-judicial powers referenced in the 1935 Humphrey’s Executor case, which protected the Federal Trade Commission (FTC) head from dismissal without cause.

Katsas stated, “We reverse,” and instead referenced the Supreme Court’s 2020 decision in Seila Law v. Consumer Financial Protection Bureau (CFPB), affirming that Trump lawfully removed Wilcox and Harris.

In March, the Trump administration appealed to the D.C. Circuit to counter a district judge’s order that reinstated Harris, arguing that the Seila Law ruling clearly stated that restricting the president’s ability to remove the CFPB director for reasons such as “inefficiency, neglect, or malfeasance” infringed on the separation of powers. The administration contended that the president’s Article II authority includes overseeing and, if necessary, removing those executing presidential duties, including “lesser executive officers.”

Later that month, the D.C. Circuit issued the stay the government asked for, but in April, the full D.C. Circuit thwarted the firings.

Not long after the D.C. Circuit heard oral arguments in May, the Supreme Court’s conservative majority weighed in on the shadow docket with a stay, ruling that the president “may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents.” The high court pointed to Seila Law and stated the stay pending appeal “reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.”

Justice Elena Kagan raged in a dissent that the majority had ignored statutory protections for Wilcox and Harris against removal “except for good cause,” as illustrated in Humphrey’s Executor, the precedent at issue next week at the Supreme Court in the case over the firing of FTC Commissioner Rebecca Slaughter.

“In valuing so highly — in an emergency posture — the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency,” Kagan wrote.

As the D.C. Circuit decision came down roughly seven months later, U.S. Circuit Judge Florence Pan, the lone dissenter, tore into the conservative majority for greenlighting “excessive” executive firing power.

Former President Joe Biden twice appointed Pan to serve on federal courts, first the U.S. District Court for the District of Columbia and then the D.C. Circuit. On both occasions, Pan filled seats vacated by Ketanji Brown Jackson, the newest member of SCOTUS and the only justice Biden appointed.

“The key feature that defines a government entity’s independence from political influence is its freedom from total control by the President. To safeguard that independence, Congress has limited the President’s authority to remove the leaders of agencies that it has determined should be apolitical — and it has set such removal protections with the approval of Republican and Democratic Presidents alike,” Pan wrote. “As relevant here, Congress has specifically provided that the President may remove the leaders of certain independent agencies only ‘for cause,’ such as the leaders’ inefficiency, malfeasance, or neglect of duty.”

“For at least ninety years,” she added, “it has been settled law that Congress may impose statutory for-cause removal protections in the exercise of its authority to organize and structure the Executive Branch. But today, my colleagues make us the first court to strike down the independence of a traditional multimember expert agency[.]”

Asserting that the upshot of the majority’s ruling is that “it appears that no independent agencies may lawfully exist in this country[,]” Pan said the logical endpoint of the Trump administration’s arguments is an executive branch entirely subject to politicization and the whims of the president.

“In essence, the government asks the courts to hold that our Constitution requires all actions and decisions made by the Executive Branch to be political. Thus, instead of relying on subject-matter expertise to make merits-based decisions for the public good, previously independent agencies must advance the political agenda of the President,” the dissent said. “Taken to its logical end, the government’s theory will eliminate removal protections for all employees of the Executive Branch and place every hiring decision and agency action under the political direction of the President.

Pan said that the outcome is a “radical upending of the constitutional order” that invites “autocracy.”

“But such a radical upending of the constitutional order is not supported by the text or structure of the Constitution and is inconsistent with the intent of the Framers,” the dissent concluded. “And while the government claims to uphold the separation of powers, its theory instead concentrates excessive power in the President and thus paves the way to autocracy.”

Read the full opinion here.