President Trump removed a member of the NLRB, and two EEOC commissioners, leaving both without a quorum for the time-being. Can he do that? Under the statutory text of the NLRA, clearly no (it requires a hearing and neglect of duty or malfeasance). Under the statutory text of Title VII (re: EEOC), removal is not expressly addressed - it does generally specify five year terms though.
There is, however, a constitutional issue. The executive power is vested in one person, the President. This power *generally* includes the power to remove people who assist him in wielding the executive power. In Humphrey’s Executor v. U.S. in 1935, SCOTUS recognized an exception, holding "that Congress could create expert agencies (specifically, the FTC) led by a group of principal officers removable by the President only for good cause."In 2020, SCOTUS limited that holding by striking down the CFPB framework in which "an independent agency [is] led by a single Director" subject to statutory limitations on the President's power to remove them. Seila Law v. CFPB (linked below). The key distinction was a multi-member board versus a single director.
The NLRB and EEOC seem a lot more like the FTC in Humphrey's Executor than the CFPB in Seila Law. Some Justices appear inclined to overrule Humphrey's Executor though, and these recent removals may put the issue in front of SCOTUS.
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