Wilcox Returns to the NLRB
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With all the court victories against the Trump administration, we don’t hear a lot about what happens after them. We do hear that President Musk is refusing to pay out required monies for spurious reasons, but otherwise, we don’t hear much. So I was happy to see that after a court reinstated Gwynne Wilcox to the National Labor Relations Board, she simply returned to work and got back to protecting workers’ rights the best she can:
As I covered last month, the National Labor Relations Board is no longer defending the constitutionality of the good-cause removal protections that the agency’s Members and administrative law judges enjoy. However, the agency is still arguing that employers’ requests to enjoin NLRB proceedings lack Article III standing, on the basis that any constitutional defects in the agency’s structure have not caused harm to the employers (covered here and here in the discussions of Collins v. Yellen).
Despite this retreat, most courts confronting the issue have continued to hold that the NLRB’s structure is constitutional. Gwynne Wilcox’s return to her seat on the Board, despite President Trump’s attempt to fire her (covered below), would undermine the agency’s causation argument. However, a Wilcox victory would establish on the merits that Members’ protections are constitutional, making a standing-based defense unnecessary.
On Wednesday, the District Court for the District of Columbia ordered that Gwynne Wilcox be returned to her seat on the NLRB. President Trump fired Wilcox in January shortly after his inauguration, the first such firing in the agency’s 90-year history. In Wednesday’s opinion, Judge Beryl Howell called Wilcox’s removal “a blatant violation of the law,” given that the National Labor Relations Act only allows the removal of Board Members “for neglect of duty or malfeasance in office, but for no other cause.”
In short, Howell reasoned that the Supreme Court’s 1935 decision in Humphrey’s Executor blessed good-cause removal protections for NLRB Members, a conclusion shared by numerous other judges to consider the question. Howell characterized the NLRB as “quasi judicial and quasi legislative,” noting that the agency’s General Counsel (who works independently from Board Members) handles prosecutorial functions such as issuing complaints against employers and unions.
Howell explicitly rejected the “unitary executive” theory advanced by President Trump and many conservative legal scholars. Quoting past remarks by Trump himself, she wrote: “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.”