The ousted U.S. Merit Systems Protection Board chair has encouraged the U.S. Supreme Court to include a caveat for "legislative courts" if it overturns precedent that empowers Congress to limit the president's authority to fire certain agency officials, but opponents of independent agencies want a clean break from the status quo.

Cathy A. Harris, whom President Donald Trump fired in February from the agency that referees federal-sector labor disputes, said she's realistic about the high court's likely decision to overturn its 1935 opinion in Humphrey's Executor v. United States authorizing Congress to check the president's firing powers, but she said she hopes the justices will provide a "bright-line rule" that distinguishes "purely adjudicatory" bodies like the MSPB from independent agencies that exercise executive power. A ruling without that distinction would upset Congress' policy determinations and strip due process protections from parties that appear before "legislative courts," she said in an Oct. 17 amicus brief she filed in a dispute over Trump's firing of Democratic Federal Trade Commission member Rebecca K. Slaughter.

Harris' proposed carveout would apply not only to the MSPB but also to the U.S. Tax Court, the U.S. Court of Veterans Claims, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Federal Claims and the federal district courts for the U.S. Virgin Islands, the Northern Mariana Islands and Guam. Each of those "legislative courts" resides outside of Article III of the U.S. Constitution, which established the judicial branch, and has judges that are appointed by the president, subject to term limits and protected by for-cause removal provisions similar to those found in statutes that govern the FTC and other independent agencies.

"Amicus urges the court — however it rules in this case — not to paint with an overbroad brush and hold that every principal officer outside of Article III must be removable at will," Harris said.

Congress has relied on Supreme Court rulings dating back to 1891 in establishing individual "legislative courts," she said, so a ruling finding that their judges can be removed at will by the president would contradict history, tradition and precedent.

The high court first ruled in McAllister v. United States in the late 1800s that Congress could create "legislative courts" whose members hold office "during good behavior" for a set period of time. And the justices have reiterated the unique position of non-Article III judicial officers as recently as 2010, when the court ruled in Free Enterprise Fund v. Public Company Oversight Board that administrative law judges were exempt from a prohibition on multiple layers of removal protections, Harris argued.

The MSPB and other "legislative courts" also lack the same authority to wield executive power that have spurred concerns about a so-called headless "fourth branch" of independent agencies, she said. The special courts are only empowered to hear discrete cases and apply laws passed by Congress. They can't bring civil suits against private parties, promulgate binding rules or initiate investigations like the FTC and other agencies can.