A Washington, D.C., district court judge decided on March 6 that President Donald Trump unlawfully dismissed Gwynne Wilcox, a Democrat, from the National Labor Relations Board (NLRB). The board, which was down to two members after the firing, has a quorum again now that Wilcox has been reinstated. The Trump administration has appealed the decision.
Wilcox announced she would challenge her termination from the board, which she said must be for cause, soon after it happened.
Similarly, two commissioners on the U.S. Equal Employment Opportunity Commission — Jocelyn Samuels and Charlotte Burrows — whom Trump fired, said they would explore their legal options to challenge their removal.
Supreme Court Precedent Hangs in the Balance
The district court judge acknowledged the administration’s argument that the U.S. Supreme Court may overturn a 90-year-old decision, Humphrey’s Executor v. United States, restricting the president’s power to remove members of independent agencies. But the judge said that until and unless the high court acts, current law supports keeping Wilcox in her role.
Supreme Court Likely to Review Issue
The Supreme Court will likely soon decide on whether Congress can protect executive branch officials from being fired by the president without cause. Wilcox’s case might get consolidated into ongoing litigation over whether Cathy Harris was unlawfully removed from the U.S. Merit Systems Protection Board. A judge reinstated Harris last month.
Wilcox’s Argument
Trump’s act of removing Wilcox from her Senate-confirmed position is “unlawful and unprecedented,” Wilcox said in a statement following her removal. “When Congress established the National Labor Relations Board almost 90 years ago, it made sure that the law would protect its independence from political influence. My removal, without cause or process, directly violates that law.”
NLRB’s Activity Before Quorum Was Restored
When it didn’t have a quorum, the NLRB couldn’t issue regulations and the full board couldn’t hear cases. But investigations could go on, and “the vast majority of cases” continued as usual, said Camille Olson, an attorney with Seyfarth in Chicago, San Francisco, and Los Angeles, prior to Wilcox being reinstated.
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