Former Board Member Gwynne Wilcox Sues Donald Trump
Setting up for a constitutional challenge over removal protections for independent agencies.
On January 28, Donald Trump fired Board Member Gwynne Wilcox. Prior to Trump, no president had removed an NLRB member and Section 3(a) of the NLRA does not permit removal for any reasons other than neglect of duty or malfeasance.
Today, Wilcox filed a lawsuit against Donald Trump and the current Chair of the NLRB, Marvin Kaplan, in federal district court. Read the lawsuit complaint below.
The complaint is brief and essentially just points to the fact that Trump’s actions violate Section 3(a) of the NLRA. This lawsuit sets up a constitutional challenge in which Trump will argue that the removal protections in Section 3(a) of the NLRA are unconstitutional because they make it impossible for the president to carry out his Article II duties to “take Care that the Laws be faithfully executed.”
Read the letter firing Wilcox, which contains a brief explanation of Trump’s constitutional argument, below.
I have discussed this legal theory before on NLRB Edge here. It is part of the unitary executive genre of conservative legal thought. The most likely outcome of all of this will be that the Supreme Court will rule that the removal protections in Section 3(a) of the NLRA are unconstitutional and that the president does have the power to fire NLRB members. I don’t think this ruling will matter all that much in the long run, but it will create delays and various headaches in the short run.