The Court of Appeals for the District of Columbia Circuit will hear oral arguments on Tuesday in a case challenging President Trump’s removal of two members of the Privacy and Civil Liberties Oversight Board. At stake is the independence of the federal agency created by Congress to protect Americans’ rights in the face of powerful post-9/11 government counterterrorism authorities. Beyond the board itself, the decision is likely to shape whether Congress can shield similar federal agencies from the president’s influence, with broader ramifications for separation of powers between Congress and the president.
Trump fired the three Democratic members of the five-member board in January 2025 without providing any basis for their removal. Two of the members challenged their termination in federal court, arguing the law does not authorize the president to remove the board’s members without cause. A federal judge agreed, and the government appealed, arguing that the president can remove board members for any reason or no reason at all.
Mission of the Privacy and Civil Liberties Oversight Board
In the wake of the 9/11 terrorist attacks, Congress rushed to expand the government’s intelligence and surveillance powers in legislation, most notably through the enactment of the Patriot Act. But it also recognized that this “shift of power and authority to the Federal Government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.” To address that need, Congress created a multi-member expert board tasked with ensuring that the federal government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties. The Privacy and Civil Liberties Oversight Board conducts in-depth investigations into government counterterrorism programs and issues detailed reports analyzing the programs’ impact on privacy and civil liberties and making recommendations to better protect those rights.
When Congress established the board in 2004, it initially housed the board within the Executive Office of the President, granted the president authority to remove its members at will, and provided that members served under the general supervision of the president. It quickly became clear that this degree of White House control was incompatible with the board’s oversight mission. Most notably, the White House watered down the board’s first report to Congress, prompting one of the original members to resign in protest. He would later testify before Congress that the level of White House influence made it impossible for the board to exercise independent oversight.
In response, Congress amended the law to insulate the board from the president’s control, removing provisions that granted the president supervision of the board and the authority to fire its members at will.
Potential Effects on Citizens’ Privacy and Civil Liberties
Since Congress enacted those changes, the board has served as an effective mechanism for impartial oversight of executive branch counterterrorism programs and an indispensable resource for Congress in conducting its own oversight. Members of Congress, represented by the Brennan Center, filed a friend-of-the-court brief in the removed members’ case highlighting the board’s important contributions to Congress and the public.
The board has played a particularly important role in congressional oversight of Section 702 of the Foreign Intelligence Surveillance Act, a controversial warrantless surveillance program that requires periodic reauthorization from Congress. In 2023, for example, the board issued a nearly 300-page public report analyzing the program’s impact on privacy and civil liberties. The following year, Congress implemented 10 of the 26 changes recommended in the report. The board also directly impacted Congress’s decision to shut down the National Security Agency’s bulk collection of telephone call metadata under Section 215 of the Patriot Act. The board’s investigation of the program, initiated at the request of a bipartisan group of lawmakers, concluded that the program invaded Americans’ privacy while providing limited intelligence value. Members of Congress made frequent reference to the report during hearings and floor debate on reforms. Consistent with the board’s recommendation, lawmakers voted to end the bulk collection program.
The board’s ability to support Congress hinges on its independence from the executive branch. Its legislative and policy recommendations have historically carried weight with lawmakers precisely because board members are independent experts rather than a mouthpiece for the president. Allowing the president to remove or replace board members as he pleases would grant the White House influence over the board, shattering that independence and causing both Congress and the public to lose trust that the board’s reports and recommendations are the product of an impartial body of experts.
At-will removal authority would also allow the president to prevent the board from performing several key functions at all. The board requires a quorum of at least three members to start new projects, expand current ones, and issue reports and recommendations. Since Trump fired the three Democratic members, the board has been operating with only one member. As a result, for more than 18 months the board has been unable to undertake its mission at a time when concerns about the expansive use of counterterrorism authorities to suppress dissent are particularly acute.
Allowing such interference with the board harms Americans’ privacy and civil liberties by crippling a critical independent oversight body dedicated to ensuring their protection, with downstream negative effects on Congress’s oversight of powerful executive branch surveillance and counterterrorism programs.
Case’s Impact on Separation of Powers
This case may also bear on Congress’s authority to limit presidential power over other federal agencies, with consequences for the separation of powers between the two branches.
Earlier this year, in Trump v. Slaughter, the Supreme Court ruled that Congress cannot limit the president’s authority to remove federal agency heads if the agency exercises “executive power.” The decision overturned 90-year-old precedent underlying much of the federal government’s modern structure, expanding the president’s authority over dozens of federal agencies at the expense of Congress.
In its opinion, the conservative majority declined to define the bounds of “executive power,” leaving it to lower courts to figure out which federal agencies exercise it. The justices emphasized that “not all offices created by Congress necessarily come with executive [power].” And they pointed to “powers of an investigative and informative nature” as powers that “may be regarded as merely in aid of the legislative function of Congress.” The Privacy and Civil Liberties Oversight Board, which investigates government counterterrorism programs and issues nonbinding reports and recommendations, falls squarely within that description.
The board’s case presents the DC Circuit with one of the first opportunities for a court to confine Slaughter to the limits articulated by the Supreme Court while protecting Congress’s ability to create independent agencies with similar mandates.
How the DC Circuit Could Rule
The appeals court should rule in favor of the terminated board members. Congress chose to strike the president’s at-will removal authority from the law in 2007 when it became clear that doing so was necessary to preserve the board’s oversight function. Ruling for the government would nullify that decision, in addition to undermining the board’s effectiveness as a civil liberties watchdog.
Protecting board members from at-will removal is constitutionally sound because the board exercises no executive power. Unlike the agency at issue in Slaughter, the board does not enforce statutes against private parties or make substantive rules with the force of law. It acts as an advisory body with informative and investigative duties.
