Fired NLRB Member Reinstated in Decision Nixing Trump Move (4)

Gwynne Wilcox can return to the National Labor Relations Board after a federal judge reversed President Donald Trump’s termination of her.

Trump lacked the authority to fire members of the NLRB despite their for-cause removal protections, and his dismissal of Wilcox “was a blatant violation of the law,” Judge Beryl Howell, an Obama appointee to the US District Court for the District of Columbia, ruled Thursday.

“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,” Howell wrote in her opinion, referencing Trump’s own statements.

Although Wilcox’s return to the NLRB will restore the board’s three-member quorum and allow it to resume issuing decisions, the Trump administration quickly sought appeals court intervention to sideline her again. The administration filed an appeal and will seek a stay from the US Court of Appeals for the District of Columbia Circuit, which recently granted the administration’s request to freeze an order reinstating fired Special Counsel Hampton Dellinger, who subsequently dropped his case.

“I’m ready to get back to work,” Wilcox said in a statement.

Howell’s decision marks the district court’s third ruling that countermanded Trump’s removals of agency officials, following decisions backing Merit Systems Protection Board member Cathy Harris and Dellinger.

Legal debate over those terminations is on a path towards US Supreme Court review of its 1935 decision in Humphrey’s Executor v. US, which authorizes restrictions on the president’s power to fire independent agency officials.

‘Not a King’

Howell’s 36-page decision features a strong endorsement of the continued vitality of Humphrey’s Executor and the importance of independent agencies—as well as a striking rebuke of what she calls Trump’s intention “to test how much the courts will accept the notion of a presidency that is supreme.”

“An American President is not a king—not even an ‘elected’ one—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here,” the judge wrote.

Removal protections on members of independent, multi-member agencies like the NLRB go back to 1887, when Congress created the Interstate Commerce Commission with for-cause firing shields for its members, Howell said.

Every Supreme Court case following Humphrey’s Executor has preserved its holding that limitations on the president’s power to dismiss agency board and commission members is constitutional, she said. Just two months ago, the high court declined to take up a case challenging the removal protections for members of the Consumer Product Safety Commission, the judge noted.

Founding-era history and the Supreme Court’s 1926 decision in Myers v. US—which clarified the president’s general removal authority for executive officials—fail to support the Trump administration’s claim that the president has unrestricted power to fire executive officers, Howell said.

“Humphrey’s Executor, and thus NLRB Board members’ removal protections, are consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements,” she said. “That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.”

Within the Scope

Howell rejected the Trump administration’s arguments that Humphrey’s Executor, which upheld removal protections of Federal Trade Commission members, doesn’t apply to NLRB members’ job safeguards.

According to the administration, NLRB members exert the type of substantial executive power that subjects them to at-will termination by the president under the Supreme Court’s 2020 decision in Seila Law v. CFPB.

But the FTC’s powers in 1935 mimicked those of the NLRB members and the agency’s general counsel—and if anything, the NLRB officials’ collective authority is less extensive than that of the FTC, Howell said. It doesn’t matter that the current Supreme Court might refer to the NLRB’s classic administrative powers as executive, she said.

“If the Supreme Court has determined that removal restrictions on officers exercising substantially the same authority do not impermissibly intrude upon presidential authority, Humphrey’s Executor cannot be read to allow a different outcome here,” the judge said.

As to the remedy that returns Wilcox to work, Howell said DC Circuit precedent allows reinstatement of a wrongly fired official.

Wilcox’s attorney, Deepak Gupta of Gupta Wessler LLP, said the ruling denied Trump’s power grab, which is a win for Wilcox and for the NLRB.

“The court has reinforced key legal protections for independent agencies that Congress designed to be impartial,” Gupta said in a statement.

The Justice Department didn’t immediately repsond to a request for comment.

The case is Wilcox v. Trump, D.D.C., No. 25-00334, 3/6/25.