Recently fired NLRB chair sues Trump administration for alleged unlawful removal News
Joe Gratz, CC0, via Wikimedia Commons
Recently fired NLRB chair sues Trump administration for alleged unlawful removal

Former chair of the National Labor Relations Board (NLRB) Gwynne Wilcox filed a lawsuit Wednesday, accusing President Donald Trump of breaking the law when he fired her last week. Wilcox claims the firing violated the National Labor Relations Act (NLRA), which only permits the removal of board members for “neglect of duty or malfeasance in office, but for no other cause.”

The suit argues that the “President’s removal of Ms. Wilcox without even purporting to identify any neglect of duty of malfeasance, and without notice or a hearing defies ninety years of Supreme Court precedent.” It also alleges that Trump has engaged in a string of illegal firings during the first several weeks of his presidency.

As the lawsuit notes, the Supreme Court has adjudicated the limits of the presidential removal power many times over the last century. In Humphrey’s Executor v. United States, a 1935 Supreme Court case, the court held that Congress could establish for-cause removal protections for independent, multi-member agencies like the NLRB. The court reiterated this precedent as recently in 2020, in Seila Law LLC v. Consumer Financial Protection Bureau, finding that for-cause removal protections did not extend to single-director independent agencies but continued to apply to multimember bodies.

Wilcox was confirmed as a member of the NLRB in 2021, becoming the first Black woman to serve as its chair. Her firing is unprecedented, making her the first board member to ever be removed in the agency’s 90-year history. She is seeking an injunction and reinstatement to her position.

As the lawsuit notes, Trump seems keen on retesting the limits of congressional power to create independent agencies before the Supreme Court. His administration asserted that the NLRB is “inconsistent with the vesting of the executive power in the President.” On the issue of removal protections, he will likely have at least two justices of the court on his side. In Seila Law, Thomas was joined by Gorsuch in a dissent which argued for overturning Humphrey’s Executor entirely and eliminating all for-cause removal protections.

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