03-12-2025
In January, President Trump fired Gwynne Wilcox, a Democrat the Senate confirmed to a second five-year NLRB term in September 2023. The NLRB was left with just two members following Wilcox’s and the board chair’s contemporaneous firings. With two members, the board has been unable to act. In the 90 years since the NLRB’s founding, no President has ever removed a board member.
Wilcox followed through on her plan to challenge the firing, which she asserted was “unprecedented” and “illegal.” A federal court reversed the firing, holding it was unlawful. Judge Howell stated, “A president who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution.” She went on to write that the president’s power to remove federal employees was not “absolute” but may be limited in appropriate circumstances. NLRB members cannot be removed at will. Under the NLRA, the president may only remove independent board members where there is “neglect of duty or malfeasance in office, but for no other cause.” Even when those circumstances exist, Wilcox would have been entitled to “notice and hearing” before her firing. Judge Howell noted that her decision was “merely a speed bump for you all to get to the Supreme Court.”
The Trump Administration has already appealed the decision, ultimately asking the Supreme Court to overrule a prior decision on the independence of certain agencies. The NLRB firings are part of the administration’s expansive view of executive power. The President has asserted he has authority over federal independent agencies, and their rules and regulations need his approval.