Supreme Court Blocks Wilcox from Returning to the NLRB for Now

The latest twist in Gwynne Wilcox’s fight to regain her seat on the National Labor Relations Board (NLRB) has turned against her: On April 9, Supreme Court Chief Justice John Roberts Jr. wrote on behalf of the court to stay the reinstatement of Wilcox, who had been fired by President Donald Trump in January. 

The decision once again denied a quorum to the board. A D.C. Circuit panel had recently blocked Wilcox from the seat during litigation, while the full D.C. Circuit ruled she should serve as a member of the NLRB. Roberts ordered briefs in the case by April 15.

Wilcox’s attorneys said the president couldn’t fire her without identifying “neglect of duty or malfeasance in office.” They argued that the administration’s only recourse is to persuade the U.S. Supreme Court to “adopt a more expansive view of presidential power.”

The full D.C. Circuit’s ruling relied on the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, which shielded independent agency members from termination without cause by the president. 

“The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that court itself changes it or overturns it,” the full D.C. Circuit said in a brief opinion. It noted that the Supreme Court has repeatedly and recently said that Humphrey’s Executor remains precedential and said this fact requires “denying the government’s emergency motions.”

The Trump administration has called for the reversal of Humphrey’s Executor.

“Until this administration, no court had ever ordered the reinstatement of a concededly executive officer removed by the president,” wrote Solicitor General John Sauer. He said the full appeals court followed an overly broad interpretation of Humphrey's Executor.

The full appeals court’s decision was by a vote of 7-4. The panel’s reversed decision had been 2-1. 

Dissenting Appeals Court Judges Cite Authority

One dissenting appeals court judge from the full appeals court’s ruling wrote, “We do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.” (Article II of the Constitution outlines the president’s executive powers.)

Another dissenting appeals court judge wrote that “the government is likely to succeed” because the removal of Wilcox, as well as of Cathy Harris as a member of the Merit Systems Protection Board, was well within Trump’s constitutional authority. 

“The Constitution vests all executive power in a single president,” the second dissenting judge wrote. “The president has both the power and the responsibility to supervise and direct executive branch officers. To carry out this responsibility, the president must be able to remove officers at will.”

While the second dissenting justice acknowledged Humphrey’s Executor, they said its precedential value has been eroded. Statutes that provide for-cause removal protections are “likely unconstitutional because they interfere with the president’s authority to remove principal officers who execute the law,” this dissenting justice said.

The First 100 Days

The Trump administration has asked the Supreme Court to review the fired agency officials’ cases. The administration also has asked for arguments to be scheduled at a special session of the court in May; a decision would follow by July.