Department of Justice. Credit/Shutterstock
The U.S. Department of Justice on Friday mounted a sweeping legal defense of former President Donald Trump’s decision to remove NCUA Board Members Todd Harper and Tanya Otsuka, arguing in court that the president holds broad constitutional authority to dismiss such officers without cause.
In a 33-page brief opposing reinstatement of Harper and Otsuka, DOJ attorneys wrote, “Because of the background presumption that the President may remove anyone he appoints, Congress must make it clear in a statute if it wishes to restrict the President’s removal power.” They emphasized that the NCUA’s statute “says nothing” about removal restrictions and that “the term of office is a ceiling, not a floor”.
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The DOJ cited the U.S. Supreme Court’s 2021 decision in Collins v. Yellen, which explicitly stated Congress imposed “no restriction on the President’s power to remove the agency’s leadership” at the NCUA. That, DOJ attorneys argued, “should end this inquiry.”
DOJ also rejected the plaintiffs’ argument that the NCUA’s structure, modeled after other independent financial regulators like the Federal Trade Commission, implies for-cause removal protections. “The NCUA does not resemble the FTC as the Humphrey’s Executor Court understood it,” DOJ wrote, emphasizing that the NCUA “exercises substantial executive power” and therefore “must be accountable to the President”.
As for the requested remedy, DOJ insisted that courts lack the authority to reinstate executive branch officers removed by the President. “The President cannot be compelled to retain the services of a principal officer whom he no longer believes should be entrusted with the exercise of executive power,” the filing stated.
According to court documents, the next deadlines are May 24 for Harper and Otsuka’s attorney Vincent Levy, partner with Holwell Shuster & Goldberg, LLP, to file a reply brief in support for their motion of summary judgment and for the DOJ to file their reply in support of their cross-motion summary judgment by May 31.
The case then turns to whether the D.C. District Court will uphold the longstanding presumption of at-will removal, or chart a new path for agency independence.
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Michael Ogden
Editor-in-Chief at CU Times. To connect, email at [email protected]. As Editor-in-Chief of CU Times since 2016, Michael Ogden has led the editorial team in all aspects of content strategy and execution, including the creation of the publication’s exclusive and proprietary research database of the credit union industry’s economic landscape. Under Michael’s leadership, CU Times has successfully shifted to an all-digital editorial product with new focuses on the payments, fraud, lending and regulatory beats. Most recently, he introduced a data-focused editorial product for subscribers that breaks down credit union issues into hard data, allowing for a deeper and more factual narrative for readers. In 2024, he launched the "Shared Accounts With CU Times" podcast, which offers a fresh, inside-the-newsroom perspective through interviews with leaders from the credit union industry and the regulatory world. He dives into pressing credit union issues, while revealing the personalities working behind-the-scenes to push the credit union world forward. His background includes years as a radio and TV anchor/reporter and a public relations and digital/social media manager, where he covered the food and music industries, as well as cooperatives and credit unions. Over the years, he has launched numerous exclusive video and podcast series, including a successful series of interactive backstage interviews with musicians at music festivals, showcasing his social media and live streaming production skills.
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