Termination of NLRB’s Wilcox creates Constitutional dilemma

On January 27, 2025, President Trump summarily fired National Labor Relations Board (NLRB) Member Gwen Wilcox. Among other ramifications, this action reduced the NLRB to only two members and, thus, prohibited the current Board from making any binding decisions. Perhaps more significantly, the termination raised historically important Constitutional issues.

The constitutionality of the president’s action in firing a sitting NLRB member is heading for the Supreme Court. At issue is the breadth of the president’s authority under the “Appointments Clause” of Article II of the Constitution, and the decision could alter the shape of the government.

Background

About 100 years ago, the president’s appointment power reached the Supreme Court. In 1926, the Court ruled in Myers v. US that Congress can only protect agency board members from at-will terminations if those officials perform quasi-judicial or quasi-legislative functions but do not exercise executive power. The issue arose again 10 years later during the formation of the New Deal and the expansion of federal authority and federal agencies and commissions.

In Humphrey’s Executor v. U.S., the Court determined that Congress could create criteria for the removal of certain commissioners—in this case, Federal Trade Commission (FTC) commissioners. In sum, the Court ruled the commissioners could be removed only for cause.