Supreme Court Permits Termination of NLRB Member Wilcox for Now

The U.S. Supreme Court on May 22 issued a brief order permitting President Donald Trump’s firing of Gwynne Wilcox from the National Labor Relations Board (NLRB) while litigation over his removal authority continues. The court also permitted the removal of a member of the Merit Systems Protection Board (MSPB), Cathy Harris, during litigation.

While the NLRB will continue to lack a quorum as a result of this order, much — including investigations — can still go on at the agency and the vast majority of cases can continue as usual, according to Camille Olson, an attorney with Seyfarth in Chicago, San Francisco, and Los Angeles. So, employers should continue to comply with the National Labor Relations Act.

Court’s Order

The Supreme Court used its emergency docket to stay March 4 and March 6 orders of a lower court — the U.S. District Court for the District of Columbia — that had blocked Harris’ and Wilcox’s firings respectively. “Because the Constitution vests the executive power in the president, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by our precedents,” the Supreme Court said.

The high court added that the stay reflected its judgment that the government is likely to show that both the NLRB and MSPB exercise considerable executive power. “But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument,” the justices said. “The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” 

A stay is appropriate to avoid the disruption of repeated removal and reinstatement of officers during the litigation, the court added.

The Supreme Court rejected Wilcox’s and Harris’ arguments that this consolidated case (Trump v. Wilcox) necessarily implicates the constitutionality of for-cause removal protections for members of the Federal Reserve’s Board of Governors. 

“We disagree,” the court said. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States.”

According to The Wall Street Journal, the White House called the ruling a major victory, saying, “President Trump, not unelected bureaucrats or rogue judges, was elected to head the executive branch.”

While the order is technically temporary, “its tone is pretty final,” NPR noted.

Dissenting Opinion

In a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan wrote, “Not since the 1950s (or even before) has a president, without a legitimate reason, tried to remove an officer from a classic independent agency — a multimember, bipartisan commission exercising regulatory power whose governing statute contains a for-cause provision. Yet now the president has discharged, concededly without cause, several such officers, including a member of the NLRB (Gwynne Wilcox) and a member of the MSPB (Cathy Harris). Today, this court effectively blesses those deeds. I would not.” 

Kagan added that Humphrey’s Executor v. United States, a 1935 Supreme Court decision, remains good law. That decision “undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”

She wrote, “The majority’s order granting the president’s request for a stay is nothing short of extraordinary. That order consents to the president’s (statutorily barred) removal of the NLRB and MSPB commissioners, at least until we decide their suits on the merits.”

The majority closed its order by stating that it has no bearing on the constitutionality of for-cause removal protections for members of the Federal Reserve Board, Kagan noted. “I am glad to hear it, and do not doubt the majority’s intention to avoid imperiling the Fed,” she wrote. “But then, today’s order poses a puzzle. For the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC [Federal Trade Commission, FCC [Federal Communications Commission], and so on — which is to say it rests largely on Humphrey’s. So the majority has to offer a different story: The Federal Reserve, it submits, is a ‘uniquely structured’ entity with a ‘distinct historical tradition.’ ” But Kagan said there’s no case law to support this reasoning. 

“If the idea is to reassure the markets, a simpler — and more judicial — approach would have been to deny the president’s application for a stay on the continued authority of Humphrey’s,” she wrote.