President Donald Trump’s efforts to alter the make up of the Board membership of the NLRB faces a new, but anticipated, legal challenge. Recently fired former Board Member Gwynne Wilcox has challenged her January 27th removal in Washington, D.C. federal court. Her termination leaves the Board without a quorum necessary to issue decisions; effectively halting the operations of the NLRB.
Wilcox’s lawsuit, filed on February 5, alleges that President Trump violated Section 3(a) of the NLRA, which limits the removal of Board members to cases of “neglect of duty or malfeasance in office,” and only after notice and hearing. In support of her suit, Wilcox relies on the 1935 U.S. Supreme Court decision in Humphrey’s Executor v. US, which held that the president’s power to remove officers of quasi-legislative and judicial agencies could be limited by express statutory conditions. The Court recently cabined this longstanding precedent in Seila Law LLC v. Consumer Financial Protection Bureau (2020), which interpreted Humphrey’s Executor’s exception on president removal as limited to similar agencies as the one at issue in that decision. Wilcox’s suit will thus likely give the Court the opportunity to clarify the contours of executive removal powers.
Wilcox’s suit requests an injunction returning her to her position, allowing the currently hampered Board to resume normal operations. Wilcox’s suit received its first potential “win” when it drew Judge Beryl A. Howell, an Obama-era appointee. This blog will continue to provide updates as the case evolves.
[View source.]
