A three-judge panel for the U.S. Court of Appeals issued a favorable ruling for President Trump, staying a recent district court decision that ruled his termination of National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne Wilcox was unlawful. Thus, it appears that the Board again is left without statutory quorum, which under the National Labor Relations Act (“NLRA”) requires at least three members.
Trump Initially Removes Wilcox
By way of background, on January 28, 2025, in one of his first moves in office, President Donald Trump removed Board Member Gwynne Wilcox. President Trump sent an email to Member Wilcox, who began her term in September 2023, stating that he had lost confidence in Wilcox’s ability to lead the Board and that there were no valid constitutional limits on the President’s ability to remove a Board member with or without cause. The email also stated the statutory limitations on removal power were unconstitutional because they are inconsistent with the vesting of the executive power in the President. Marvin Kaplan, who Trump tapped to replace Ms. Wilcox as Board Chair, instructed his direct report to begin Ms. Wilcox’s termination, cut off her access to her accounts, and have Ms. Wilcox clean out her office. Trump’s decision to remove the Democratic appointee left the Board with only two sitting members and without a quorum to hear cases.
D.C. District Judge Then Reinstates Wilcox
Ms. Wilcox then proceeded to challenge her removal and filed a lawsuit alleging Trump violated the NLRA. Under the NLRA, Board Members can only be removed before their term’s end for “malfeasance” or “neglect of duty,” and they also must be given “notice and a hearing.” Ms. Wilcox sought a ruling that her termination was unlawful and void, along with injunctive relief against Board Chair Kaplan so that she may resume her role as a Board member.
As we reported here, on March 6, 2025, U.S. District Judge Beryl A. Howell agreed with Wilcox and determined that she was illegally fired. Judge Howell ordered that Kaplan not prevent Wilcox from doing her job and completing her five-year term, which expires on August 27, 2028. In her decision, Judge Howell relied on Humphrey’s Executor v. U.S., 295 U.S. 602 (1935), a Supreme Court case that outlined the principle for Congress to establish independent, multimember commissions whose members are appointed by the President. In 1935, the Supreme Court in Humphrey’s Executor upheld restrictions on the President’s authority to remove officers of certain types of independent agencies—in that case, a commissioner of the Federal Trade Commission. Humphry’s Executor has historically been applied to the NLRA, limiting the President to only remove Board Members for cause. The district court held that Humphrey’s Executor is still good law, and in effect still allows Congress to insulate the heads of multi-member expert agencies from presidential removal.
D.C. Circuit Now Reverses Course, At Least for the Time Being
Trump immediately appealed the district court’s decision to the U.S. Court of Appeals for the District of Columbia. On March 28, 2025, a panel of the D.C. Circuit, in a 2-1 decision, paused the district court’s ruling and found that restrictions on the President’s power to remove officers of the executive branch are likely unconstitutional.
The two Republican-appointed judges, Judge Justin Walker and Judge Karen Henderson, agreed with Trump’s arguments granting him broader executive power. Judge Walker wrote, “The Supreme Court has said that Congress cannot restrict the President’s removal authority over agencies that ‘wield substantial executive power.’” Democratic-appointed Judge Patricia Millet dissented in a 53-page opinion, criticizing the panel for deciding to “rewrite controlling Supreme Court precedent” in a way that will end up “disabling agencies that Congress created.”
The panel’s decision is not a final decision on the merits, and only stays the district court’s ruling until a final decision on the merits is reached. The panel is scheduled to hear oral arguments on the merits on May16.
However, on April 1, Wilcox filed a petition for initial hearing en banc and for rehearing en banc with the full D.C. Circuit. In court filings, Wilcox told the full D.C. Circuit that the full court should hear her case because the special panel’s opinion rewrote U.S. Supreme Court precedent. According to Wilcox, this “is an extraordinary case justifying initial en banc review of the merits.”
What’s at Stake?
The ongoing legal between Trump and Wilcox raises several constitutional issues. President Trump conceded that his email termination issued to Wilcox violated statutory requirements under the NLRA for removing a Board member. Instead, Trump’s strategy has been to contend that the President’s removal power is fundamentally unrestricted, and therefore the NLRA’s good-cause requirement is unconstitutional. Article I of the Constitution vests all legislative powers in Congress (the Senate and House of Representatives). Article II vests the executive power in the President. Article III vests the judicial power in one Supreme Court and other inferior Courts established by Congress. The ongoing legal battle between President Trump and Wilcox presents a clash between the executive and legislative branches. By terminating Wilcox, President Trump wielded executive power to overcome the NLRA, a statute enacted by Congress. The executive and legislative branches now look to the courts (Article III) to interpret the Constitution, past practice, and judicial precedent to resolve the current conflict.
Takeaways
For now, Trump’s termination of Wilcox stands, leaving the Board without a quorum. But the decision may not last. On April 1, Wilcox asked the full D.C. Circuit to hear her case challenging her termination instead of having a three-judge panel of the court conduct the initial review on the merits.
We will continue to monitor future developments on our blog. Employers with questions about how the decision affects them should consult experienced labor counsel.