U.S. Supreme Court Building
The high-stakes battle over whether President Donald Trump lawfully removed Todd Harper and Tanya Otsuka from the NCUA Board has landed before the U.S. Supreme Court.
On Sept. 25, attorneys for Harper and Otsuka filed a petition for certiorari before judgment, asking the justices to take up their case immediately rather than wait for a ruling from the U.S. Court of Appeals for the D.C. Circuit. The petition was placed on the Supreme Court’s docket Sept. 29.
The unusual request underscored the sweeping implications of the dispute, which could redefine presidential power to remove independent regulators. At issue is whether Trump’s decision to oust Harper, then NCUA chairman, and fellow board member Otsuka earlier this year violated statutory protections and the separation of powers.
Just days earlier, the D.C. Circuit itself acknowledged the stakes. In a Sept. 29 order, the appeals court removed the case from its Nov. 21 argument calendar and placed it in abeyance, citing the Supreme Court’s grant of review in Trump v. Slaughter, a parallel case involving Federal Trade Commission commissioners. That case could set the governing precedent for Harper and Otsuka.
The Slaughter case centered on Trump’s attempt to dismiss FTC Commissioners Rebecca Slaughter and Alvaro Bedoya without cause, directly challenging the “for cause” protections that have shielded FTC members since the 1935 Humphrey’s Executor decision. The Supreme Court has already scheduled arguments for December 2025, and its ruling could reshape how removal protections apply not just to the FTC but to independent regulators across the government.
When reached by CU Times, Henry Meier, Esq., a credit union industry attorney, shared his thoughts on these latest developments in the case.
“The Supreme Court is using Slaughter to reconsider and most likely overrule Humphrey’s Executor. In that case, decided in 1935, the Supreme Court rejected an argument by FDR [Franklin D. Roosevelt] virtually identical to the argument being advanced by the Trump Administration: That ‘for cause’ removal protections for the heads of executive branch agencies violated the President's Executive Branch prerogatives.” Meier added, “The decision by the appeals court to put NCUA's case on hold recognizes that the Supreme Court’s ultimate ruling in Trump, et al. v. Rebecca Slaughter, et al., will determine NCUA's fate as an independent agency.”
For now, the agency is operating with only one board member, Chairman Kyle Hauptman, who remains in place.
As the Supreme Court is expected to hear arguments in Trump v. Slaughter later this term, whether it will also grant early review in the Harper/Otsuka case could determine how quickly the future of the NCUA Board, and the independence of financial regulators more broadly, is resolved.
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