Trump’s Labor Board Firing Sets Up Agency Independence Test Case

President Donald Trump’s unprecedented removal of a National Labor Relations Board member won’t survive a legal challenge unless the US Supreme Court rolls back a 90-year-old precedent protecting independent agency leaders, administrative law scholars said.

Trump fired Democratic NLRB member Gwynne Wilcox late Jan. 27, part of a purge of what the White House alleged were “far-left appointees with radical records” who don’t belong in the Trump administration. Federal labor law, however, explicitly limits removal of board members to instances of neglect or malfeasance.

“Under existing law, the firing is illegal,” said Sidney Shapiro, an administrative law professor at Wake Forest University. “Everybody and their uncle understand the Trump administration is setting up a test case.”

Wilcox’s termination is among several early moves Trump has made that push at the limits of—and potentially exceed—his executive authority. Courts have already temporarily halted Trump’s orders to restrict birthright citizenship and stop payment of federal grants and loans. The administration has since rescinded its spending freeze order.

Wilcox has said she will pursue “all legal avenues” to contest her removal. Unions and other organizations regulated by the NLRB could also try challenging the administration’s move because firing Wilcox took away the board’s quorum and thus its ability to issue decisions. That is potentially an injury that would give a regulated party standing to sue.

Trump also axed a pair of Democratic appointees to the Equal Employment Opportunity Commission. Congressional Democrats and advocacy groups have said those firings are illegal, as EEOC members are generally understood to have similar for-cause removal protections, even if the agency’s implementing statute doesn’t explicitly say so.

Trump’s power grab could give him the ability to fire leaders at a host of independent agencies—including the Federal Reserve System’s Board of Governors—if they fail to comply with his wishes.

“The reason to make them subject to removal is so the president can threaten them,” said Noah Rosenblum, an administrative law professor at New York University. “Members of the Federal Reserve would no longer enjoy for-cause removal protections, and presumably would be under the thumb of the president.”

Targeting Precedent

The Supreme Court affirmed Congress’ power to set limits on the president’s power to oust agency officials in 1935’s Humphrey’s Executor v. US, which upheld for-cause removal protections for members of the Federal Trade Commission.

The high court has blessed expansions of the president’s removal authority in recent years, most notably eliminating the for-cause firing shield for the director of the Consumer Financial Protection Bureau in Seila Law LLC v. CFPB.

The Trump administration seized on Seila Law in its letter justifying Wilcox’s firing, arguing that NLRB members don’t fall under its exceptions to the president’s power to remove agency leaders because the board exercises executive power and isn’t balanced along partisan lines.

But the administration “cherry-picked” from non-binding language in Chief Justice John Roberts’ Seila Law opinion to stretch the decision to meet its needs, said Jed Shugerman, an administrative law professor at Boston University.

“The justification doesn’t pass the smell test from a lawyerly perspective,” said Rosenblum, the NYU professor. “Under their justification, Humphrey’s Executor was wrongly decided and FTC commissioners are removable. Yet the one thing we know for sure is that Seila Law was meant to carve out Humphrey’s Executor and the protections for multi-member commissions.”

The administration’s rationale signals that it actually wants to challenge Humphrey’s Executor, said Jennifer Nou, an administrative law professor at the University of Chicago. For example, it raised the need for the NLRB to have partisan balance, but that’s a norm rather than a statutory requirement.

Fast-Track Review

The Trump administration’s attempt to expand executive power through the courts marks a break from the more organic way that administrative law typically develops. It usually features states or private parties challenging how federal agencies operate as part of an appeal of agency action, said Louis Virelli, an administrative law professor at Stetson University.

“The president is gratuitously violating the law to ostensibly trigger a legal question,” Virelli said. “It’s unusual to create a vehicle out of whole cloth.”

The case could move swiftly up to the Supreme Court if lower courts faithfully apply Humphrey’s Executor to a challenge to Wilcox’s firing, he said.

Administrative law professors differed on whether Humphrey’s Executor would survive a direct challenge at the Supreme Court.

The high court has enabled the expansion of presidential power, particularly around the ability to remove agency officials, scholars said. But the justices have also emphasized the need to protect democracy, as well as assuring stability, accountability, and predictability of government agencies, they said.