DC Circuit Removes Gwynne Wilcox During Pending Legal Challenge
The NLRB lacks a quorum once again.
On January 28, President Trump fired NLRB Member Gwynne Wilcox (read the letter firing Wilcox here). The termination violated Section 3(a) of the National Labor Relations Act (NLRA), which only permits removal of Board Members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The Trump administration made this move with the intent of challenging the constitutionality of that restriction using the “unitary executive” theory that has come out of the conservative legal movement. The removal of Wilcox brought the number of NLRB Members down to two, which is less than the quorum needed for the NLRB to issue decisions.
On March 6, the DC District Court ruled that the termination of Wilcox was unlawful and reinstated her. Wilcox returned to work on March 10, which restored the NLRB’s quorum. Between March 10 and March 28, the NLRB issued six unpublished and three published decisions with Wilcox on the panel.
On March 28, the DC Circuit Court granted the Trump administration’s emergency motion for a stay of the district court decision reinstating Wilcox, in effect firing Wilcox again for at least the duration of the Trump administration’s appeal of the lower court order. Thus, the NLRB lacks a quorum again. (See How the NLRB Works Without a Quorum and Timeline of Notable NLRB Events During Trump's Second Term)
The DC Circuit Court’s order is attached and summarized below.
This decision from the United States Court of Appeals for the District of Columbia Circuit concerns two consolidated cases regarding presidential removal authority: Harris v. Bessent (No. 25-5037 and 25-5055) and Wilcox v. Trump (No. 25-5057). The court granted the government's emergency motions for a stay of district court judgments that had maintained two officials in office after the President had removed them.
The case involves Cathy Harris, a member of the Merit Systems Protection Board (MSPB), and Gwynne Wilcox, a member of the National Labor Relations Board (NLRB). Both were removed by President Trump but secured district court orders maintaining them in office. The government appealed these orders and sought emergency stays.
In a per curiam order, the court granted the government's motions for stays. Judge Walker and Judge Henderson wrote concurring opinions, while Judge Millett dissented.
Judge Walker's concurrence framed the issue around Article II of the Constitution, which vests executive power in the President and requires the President to ensure that laws are faithfully executed. He conducted a historical analysis beginning with the founding period, emphasizing the Framers' decision to create a unitary executive to ensure accountability. Judge Walker reviewed the "Decision of 1789," when the First Congress recognized the President's power to remove executive officials without Senate approval, and noted this understanding persisted through the early Republic.
Judge Walker then analyzed Supreme Court precedent on the President's removal power, starting with Myers, which affirmed the President's unrestricted removal power over executive officials. He explained how Humphrey's Executor created a limited exception for multimember expert agencies exercising quasi-judicial and quasi-legislative functions, but argued that more recent Supreme Court decisions have severely narrowed this exception. Judge Walker contended that Seila Law and Collins effectively confined Humphrey's Executor to its facts, applying only to agencies materially indistinguishable from the 1935 FTC.
Applying this framework, Judge Walker determined that both the NLRB and MSPB "wield substantial executive power" through their authority to conduct adjudications, issue orders, and enforce compliance. He concluded the government was likely to succeed in showing their statutory removal protections are unconstitutional.
Judge Henderson concurred, though she viewed the merits question as "a slightly closer call." She emphasized that the government had demonstrated irreparable harm that would result from maintaining Harris and Wilcox in office against the President's will, reasoning that such constraints diminish the presidency and undermine accountability.
Judge Millett dissented, arguing that controlling Supreme Court precedent in Humphrey's Executor and Wiener upholds for-cause removal protections for members of multimember adjudicatory bodies like the NLRB and MSPB. She emphasized that the Supreme Court has expressly preserved these precedents in its recent decisions and that this circuit's own precedent requires applying them. Judge Millett also argued that the stay would disable both agencies by removing their quorums, preventing them from functioning during the appeals and creating case backlogs.
The dissent further contended that the stay does not maintain the status quo (the proper purpose of a stay) but instead dramatically alters it by allowing unprecedented terminations of board members protected by statute. Judge Millett warned that the majority's reasoning could threaten removal protections for numerous other multimember agencies and non-Article III judges.
Significant Cases Cited
Humphrey's Executor v. United States, 295 U.S. 602 (1935): Upheld for-cause removal restrictions for members of the Federal Trade Commission as constitutional.
Seila Law LLC v. CFPB, 591 U.S. 197 (2020): Held that removal restrictions for the single director of the Consumer Financial Protection Bureau were unconstitutional while preserving Humphrey's Executor for multimember expert agencies.
Myers v. United States, 272 U.S. 52 (1926): Established that the President has unrestricted power to remove executive officials appointed with Senate confirmation.
Collins v. Yellen, 594 U.S. 220 (2021): Applied Seila Law to strike down removal protections for the single director of the Federal Housing Finance Agency.
Wiener v. United States, 357 U.S. 349 (1958): Upheld for-cause removal protections for members of the War Claims Commission, a purely adjudicatory body.