Supreme Court Removes Board Member Gwynne Wilcox
The NLRB lacks a quorum once again.
Gwynne Wilcox’s on-again-off-again status as a Board member is back off. The Supreme Court issued a one-page order on April 9 staying the decision of the D.C. District Court to reinstate Wilcox after President Trump fired her. This means that Wilcox will not serve as a Board member for as long as the legal challenge over her termination is pending, unless the Supreme Court reverses its own stay, which it will have one more opportunity to do.
The entire history of this particular legal battle is summarized and linked on my Timeline of Notable NLRB Events During Trump's Second Term. The short of it is as follows:
January 28, 2025: Trump fired Board Member Wilcox in violation of the removal protections in Section 3(a) of the NLRA, setting up for a constitutional challenge to those removal protections.
March 6, 2025: The DC District Court ruled that Trump’s termination was illegal and reinstated Wilcox.
March 28, 2025: A three-member panel of the DC Circuit Court granted an emergency motion for a stay of the March 6 decision and removed Wilcox again.
April 7, 2025: The entire DC Circuit Court vacated the March 28 order and reinstated Wilcox again.
April 9, 2025: The Supreme Court granted a motion for a stay of the March 6 decision and removed Wilcox again.
Because Wilcox was one of the three current members of the NLRB, and the agency needs three members to have a quorum, the NLRB now lacks a quorum to make certain decisions. Unless Trump appoints new Board members to the agency, the NLRB will lack a quorum while Wilcox’s case makes its way through the D.C. Circuit and then to the Supreme Court. (Read How the NLRB Works Without a Quorum).
The most likely outcome of all of this is that the Supreme Court will eventually declare that the removal protections of Section 3(a) of the NLRA are unconstitutional and that the president can fire Board members at will. At that point, the nine decisions the Board made in March while Wilcox was reinstated will become retroactively invalidated and, going forward, Board members will be removable by presidents.
As I noted in July of last year, it is not clear that changing the removability of Board members will really matter all that much. Presidents already appoint new NLRB members whenever their fixed terms end, meaning that presidents already are able to ensure that their party controls the agency. Right now, this happens with a bit of a lag because Board member terms are staggered. In a post-Wilcox world, it will happen as soon as new presidents take office.
Similarly, right now, if a president wants to deprive the NLRB of a quorum, it can do so by not replacing Board members when their terms expire. In a post-Wilcox world, presidents will be able to achieve this result at any time by firing Board members.