President Trump's Termination of Member Gwynne Wilcox

On January 28, 2025, the Trump Administration terminated Gwynne Wilcox from her position as a Member of the National Labor Relations Board (NLRB or the Board). Gwynne Wilcox, a union side lawyer for Levy Ratner, was confirmed to the Board for an original term in 2021 and confirmed again for a successive five-year term expiring in 2028 in 2023.

The NLRB is a quasi-legislative and judicial body that adjudicates unfair labor practice claims from the Office of Administrative Law Judges (ALJ), cases presented before it by the Office of the General Counsel (OGC) and promulgates regulations through notice and comment rulemaking.  At full complement, the Board contains five members appointed to staggered five-year terms.

Unlike the General Counsel, a Member of the NLRB can only be terminated “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”[1] The Supreme Court, in Humphrey’s Executor v. United States, held that the President does not have unlimited power of removal over members of “quasi legislative or quasi-judicial agencies” who are acting “in discharge of their duties independently of executive control”.[2] 

Procedural History

Upon her termination, Member Wilcox immediately commenced legal action for reinstatement, initiating suit in the United States District Court for the District of Columbia.  On March 6, 2025, the District Court, in an opinion written by Judge Beryl Howell, an Obama appointee, granted Wilcox’s motion for summary judgment and emergency injunctive relief, holding Wilcox’s termination was unlawful and thereby permitting Wilcox to serve on the Board until her term expires.[3] The District Court cited Supreme Court precedent as recent as 2010 reiterating Humphrey’s Executor’s central holding that “Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause.”[4]

In doing so, the District Court held the National Labor Relations Act (NLRA)’s for-cause removal provision was constitutional, invoking Humphrey’s Executor by stating that the President’s removal authority may be limited by Congress, and that said limitations were not an infringement upon executive power.[5]

Appeals Court Reversal

On appeal, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), reversed the District Court and granted the Trump Administration’s emergency motion for a stay of Wilcox’s reinstatement.[6]  In separate concurring statements, Judge Justin Walker, a Trump appointee, and Judge Karen Henderson, a George H.W. Bush appointee, clarified their rationale for granting the stay. Judge Walker invoked the perils and dysfunction the early Republic was made to endure under the Articles of Confederation.  The federal government had to rely on the states’ good graces to carry out national policies.

In addition, the Framers had a historic suspicion of concentrated legislative power due to London’s assertion of parliamentary supremacy to justify taxation without consent prior to the Revolutionary War.[7] Judge Walker contended that the Framers’ unification of power in the executive branch, as opposed to the Framers’ division of power in two chambers within the legislative branch, indicated the need for unity in the Executive to ensure vigor and accountability to the people.[8]

Judge Walker posited that as the Board files suit in federal court on behalf of the United States, and petitions for backpay on behalf of workers, the Board exercised a quintessentially executive power not considered in Humphrey’s Executor.[9] Thus, the NLRB exercised substantial executive power that by right belongs to the President alone, and the Trump Administration was likely to prevail in its argument that for cause removal provisions were unconstitutional.[10] An emergency stay of Wilcox’s reinstatement was thus wholly necessary.

Judge Henderson agreed with “the general principles” articulated by Judge Walker’s opinions “about the contours of presidential power under Article II of the Constitution”, though she found the government’s likelihood of prevailing a slightly closer call.[11] Though also differing from Judge Walker in labeling the NLRB’s rulemaking legislative, rather than executive, in nature, Judge Henderson invoked Supreme Court precedent holding it incongruous with the President’s duty to “take Care that the laws be faithfully executed,”[12] to then in turn mandate the chief magistrate “be fasten[ed] with principal officers who by their different views of policy make his taking care the law be faithfully executed most difficult or impossible.”[13] As the President could not be held fully accountable for discharging his own responsibilities without the power to remove principal officers, Judge Henderson contended the Trump Administration had more than met its burden of irreparable harm, and thus the emergency stay was justified.[14]

En Banc Reversal

On appeal before an en banc[15] panel, the tide once again turned, with all active Democratic D.C. Circuit appointees (a majority) vacating the Trump Administration’s motion for a stay pending appeal and reinstating Wilcox.[16] Judge Sri Srinivasan, an Obama appointee, characterized Humphrey’s Executor as upholding removal restrictions for government officials on multimember adjudicatory boards.[17] As the federal circuit courts were bound to follow extant Supreme Court precedent, and Humphrey’s Executor had not been overturned,  federal courts of appeal were bound to follow the case law which directly controls.[18] In dissent, Judge Neomi Rao, a Trump appointee, not only asserted the government was likely to succeed on the merits because the removal of Wilcox falls within the President’s inherent Article II authority, but cited a more compelling ground for granting a stay in the form of “the district court’s expansive and unprecedented injunctions.”[19] Such expansive injunctions presented “difficult and novel questions about the remedial authority of the Article III courts in the context of the President’s exercise of his Article II powers.”[20]

Supreme Court Stay

On April 9, 2025, the Supreme Court stayed Wilcox’s reinstatement pending further order of the Court.[21] Oral arguments for the case are scheduled for May 16, 2025.  Though the Court is widely perceived to be composed of 6 originalists and 3 progressives, there have been noted divisions between the originalists on the Court.  Justices Neil Gorsuch, Clarence Thomas, Samuel Alito and Amy Coney Barrett are far more inclined to overturn precedent and vitiate statutes for failing to adhere to the Constitution’s original meaning. In contrast, Chief Justice Robers and Justice Kavanaugh are judicial minimalists who prefer upholding precedent to avoid disruption in constitutional jurisprudence.  It is an open question whether either will join the Court’s other conservatives in overturning Humphrey’s Executor.

Implications for Employers

As the Supreme Court has denied Gwynne Wilcox’s reinstatement, the Board remains deadlocked with only two members, Republican Acting Chair Marvin Kaplan, and Democratic Member David Prouty, and continues to lack a quorum. As such, the Board cannot hear cases from the ALJ, and previous Board precedent is unlikely to be overturned.

However, President Trump has recently nominated Crystal Carey, a partner at management side firm Morgan, Lewis and Bockius, as General Counsel. Once confirmed, Ms. Cary will begin altering enforcement priorities at the OGC and submitting exceptions briefs to the Board urging a return to longstanding precedent that was overturned under the Biden and Obama Administrations. Acting General Counsel William B. Cowen has already revoked the enforcement memorandums issued by OGC under his predecessor, Jennifer Abruzzo. For elaboration on said memoranda, please see Scarinci and Hollenbeck’s previous post, “Redefining Labor Relations: NLRB’s Pivot from Abruzzo’s Memoranda.”

If the Trump Administration prevails and Humphrey’s Executor is overturned, employers should prepare for even more abrupt shifts in policy from administration to administration.  Particularly, if for cause removal provisions are invalidated, all manner of multimember adjudicative agencies, including not only the NLRB but the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC), may be subject to wide shifts in rulemaking and enforcement priorities.

Need Guidance on Labor Relations Law?

Contact Scarinci Hollenbeck, LLC today to discuss how these potential changes to the NLRB might affect your business operations. Our experienced attorneys can help navigate the evolving regulatory landscape.

Contact Our Labor Relations Team

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[1] 29 U.S.C. § 153(a).

[2] 295 U.S. 602, 629 (1935).

[3] Wilcox v. Trump, No. 2025-cv-00334 BAH, 2025 WL 720914 at *10 (D.D.C. March 6, 2025).

[4] Free Enter. Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010).

[5] Ibid.

[6] See Harris v. Bessent, No. 25-5037, 2025 WL 980278 at *1 (D.C. Cir. March 28. 2025).

[7] Id. at 3.

[8] Ibid.

[9] Id. at *16.

[10] Ibid.

[11] Id. at *21.

[12] U.S. Const. art. II § 3.

[13] Myers v. United States, 272 U.S. 52, 131 (1926).

[14] Harris, 2025 WL 980278 at * 24 (citing Free Enter. Fund, 561 at 499, to assert the growth of the administrative state “heightens the concern that [the Executive Branch] may slip from the Executive’s control, and thus from that of the people”).

[15] An en banc panel of a federal appellate courts consists of all active judges within the circuit, as opposed to the original three judge panel. The only exception is the Ninth Circuit, which convenes a limited though augmented en banc court to due to numerosity of active judges within the circuit.

[16] Harris v. Bessent, No 25-5037, 2025 WL 1021435 at *1(D.C. Cir. April 7, 2025)(en banc).

[17] Ibid.

[18] Ibid.

[19] Id. at 3.

[20] Id. at 4.

[21] Trump v. Wilcox, No. 24A966, 2025 WL 1063917, at *1 (U.S. Apr. 9, 2025).