The Merit Systems Protection Board (MSPB) does not have a quorum, meaning it cannot fully function, as a result of a Supreme Court decision against Cathy Harris. The Trump administration fired Harris, a Democratic member of the MSPB whose term was to run through 2027, leaving one board member and rendering the appeals board unable to make rulings.

District judges blocked Harris’ removal, however appeals courts paused the lower court’s ruling. In a 2-1 decision, the DC Circuit Court ruled Trump likely has the legal authority to remove Harris, despite not showing of the removal was for cause, as required under the statutes that created the agencies.

The primary issue in the case is Humphrey’s Executor, a unanimous 1935 Supreme Court decision that found the president does not have absolute authority to remove officials on multimember, quasi-judicial bodies, such as the MSPB. The Trump administration argues Humphrey’s Executor is not good law and the president should be able to remove Harris and other officers of the executive branch. The D.C. Circuit concluded that Humphrey’s Executor did not apply because of the differences between the NLRB and the MSPB on the one hand, and the Federal Trade Commission, the agency at issue in Humphrey’s Executor, on the other. The rulings also apply to Gwynne Wilcox, a Democrat on the National Labor Relations Board also terminated by Trump.

In a dissent, Judge Patricia Millett disagreed with the majority about the applicability of Humphrey’s Executor to the NLRB and the MSPB, saying the decision “marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.” She called the majority’s decision “a hurried and preliminary first-look ruling by this court to announce a revolution in the law that the Supreme Court has expressly avoided,” which would “trap in legal limbo millions of employees and employers whom the law says must go to these boards for the resolution of their employment disputes.”

Henry Kerner, a Republican is the sole board member currently serving on the MSPB, the body that hears federal employee’s appeals for firings and suspensions. MSPB cannot issue rulings unless it has a quorum – at least two members. The appeals board has seen a large increase in cases due to the mass layoffs of feds.