Supreme Court poised to expand executive power to fire agency heads

The unprecedented termination of National Labor Relations Board (NLRB) Member Gwynne Wilcox is headed for adjudication by the Supreme Court, but Chief Justice John Roberts may have revealed his inclination and signaled the Court’s ruling in a gratuitous administrative order.

Wilcox seeks to block her termination

After she was summarily terminated by President Trump, Wilcox sought to block her termination by relying on the National Labor Relations Act (NLRA), which established the NLRB and included a protection for members from arbitrary dismissal. The statute required that Board members could be removed only for “malfeasance” or “neglect of duty” and after a hearing on the allegations.

The Supreme Court’s 1935 decision in Humphrey’s Executor v. United States upheld removal protections for members of multimember agencies. Subsequent Court rulings have narrowed this exception to agencies that don’t have executive authority. President Trump acknowledges the statute but maintains it’s an unconstitutional limitation on his executive authority. Wilcox succeeded in winning a stay and was briefly returned to her position on the Board. The administration appealed.

D.C. appellate court rules against Wilcox

In a quickly moving series of judicial decisions, a three-judge panel of the D.C. Circuit voted 2-1 to deny Wilcox’s petition to preserve the status quo by keeping her in her seat pending a final ruling on her case.