D.C. Appeals Court Issues Ruling in Trump’s Favor: NLRB to Lack Quorum Again
The Trump Administration notched a win in its fight for control of the National Labor Relations Board last Friday, March 28. The U.S. Court of Appeals for the D.C. Circuit overruled a lesser court’s stay on the firing of NLRB member Gwynne Wilcox, as well as a similar stay on the firing of Merit Systems Protection Board member Cathy Harris.
The decision from the Court of Appeals means that the NLRB will once again be without a legal quorum to issue national decisions at least until after May 16, when the court scheduled oral arguments on the merits of the case.
Writing in the majority for the 2-1 decision, Trump appointee Circuit Judge Walker said the administration showed standing by arguing it would “suffer irreparable harm each day the President is deprived of the ability to control the executive branch.”
In his ruling, Walker cited Article II of the Constitution’s clause requiring the President to “take Care that the Laws be faithfully executed.” Independent agencies that aren’t accountable to the President, Walker argued, “disrupt that design.”
“The Government is likely to succeed in showing that the statutory removal protections for [NLRB] commissioners and [MSPB] members are unconstitutional,” Walker wrote, adding that “the public interest” supports a stay “by allowing the people’s chosen officer to control the executive branch.”
The other judge writing in favor of the majority, Karen Henderson, noted that the board members couldn’t demonstrate they would suffer irreparable harm for being fired, since a finding in their favor could grant both of them backpay.
Judge Millett, Obama appointee and the lone dissenting judge, argued that her fellow Appeals Court judges’ ruling ignored previous rulings by their court and two unanimous decisions from the Supreme Court, including in finding that the stay would “irreparably injure” the government, and that the granted stay fails to return the situation to its previously uncontested status quo pending a final ruling.
In her dissent, Millett also noted that the lack of an NLRB and MSPB quora will result in a backlog of unresolved and unresolvable national cases, as previously occurred under the last Trump Presidency. “When the MSPB was deprived of a quorum between 2017 and 2022, a backlog of 2,793 cases built up,” she noted.
Even while the NLRB lacks a quorum, she wrote, “Nothing obligates the President to appoint replacement members. So by granting a stay, the majority opinion converts the President’s removal authority into the power to render inoperable, potentially for years on end, boards that Congress established and funded to address critical national problems.” (Labor relations attorney David Rosenfeld of Winberg, Roger & Rosenfeld, has previously noted a similar threat to the NLRB if President Trump declines to name more members after firing Wilcox.)
While the stay currently leaves the NLRB without a quorum for a second time, it’s not the Appeals Courts’ final say: That will come after May 16, when the judges will decide the case based on the merits and issue their own final decision. After that, the Constitutional question of the President’s power to fire members of individual agencies may face the Supreme Court.
