Trump Fires Former Chair from NLRB, Setting Up Constitutional Fight
A Constitutional battle is heating up in the National Labor Relations Board. On January 28, two days after his expected dismissal of general counsel Jennifer Abruzzo, President Trump went further and dismissed Biden appointee and former chair Gwynne Wilcox. The move challenges Supreme Court precedent for the President’s ability to fire board members and leaves the NLRB with only two sitting members — lacking the legal quorum necessary to issue decisions.
While the decision to fire General Counsel Abruzzo was criticized by Democrats and labor leaders, the President’s right to fire the NLRB General Counsel were upheld by the 9th U.S. Circuit Courts in 2023 after President Biden fired General Counsel Peter Robb, appointed by Trump during his first term.
In a statement, Wilcox said it was “an honor” to serve on the board, and that she would challenge her removal. “I will be pursuing all legal avenues to challenge my removal, which violates long-standing Supreme Court precedent,” she wrote.
Wilcox is likely alluding to Humphrey’s Executor v. United States, which found in 1933 that it was illegal for President Franklin Delano Roosevelt to remove a President Hoover employee from his position as FTC commissioner for policy reasons, contrary to the FTC Act, which only allowed for the removal of a commissioner for “inefficiency, neglect of duty, or malfeasance in office.”
According to the National Labor Relations Act, any member of the NLRB can be removed by the President for “neglect of duty” or “malfeasance in office,” but not for any other reason. But legal arguments, including those made by Elon Musk’s SpaceX against the Board’s jurisdiction, have recently argued that such restrictions violate the President’s Constitutional requirement under Article II to “take Care that the Laws be faithfully executed.” Arguments made by SpaceX lawyers along these lines have already earned the company a preliminary injunction against the NLRB, which was seeking unfair labor practice charges against the space company.
While the Constitutional questions swirl, dismissal of Wilcox will effectively cripple the NLRB in the near term. In the 2010 Supreme Court decision New Process Steel v. NLRB, the Court ruled that the board needs to have at least 3 voting members to issue orders and decisions. With Wilcox gone, the Board now only has two — Marvin E. Kaplan, an appointee from Trump’s first term who currently chairs the Board, and David Prouty, a Biden appointee. They will only regain a quorum once Trump nominates, and the Senate approves, a third member.
Wilcox’s firing was immediately met by challenges from Democrats and labor leaders calling her removal illegal. In a statement, AFL-CIO President Liz Shuler noted that Wilcox was the first Black woman to serve on the NLRB and noted the lack of quorum would leave the NLRB powerless to protect workers.
“By leaving only two board members in their posts, the President has effectively shut down the National Labor Relations Board’s operations, leaving the workers it defends on their own in the face of union-busting and retaliation,” Shuler said, adding that she expected Wilcox will be restored to her position by the courts.
Representative of Virginia Robert Scott, a member of the House Committee on Education and Workforce, argued in his own statement that the NLRB is meant to be an independent body. “No President has the right to rule by decree and ignore explicit protections provided by federal law,” Scott wrote, calling the actions illegal
Scott also noted that the lack of a quorum could jeopardize the status of the NLRB’s existing investigations, including into SpaceX. “This calls into question the status of the Board’s investigations of Elon Musk’s businesses, which are under scrutiny for unfair labor practices,” Scott wrote.
