National Labor Relations Board (NLRB) Member Gwynne Wilcox, removed by President Donald Trump during his first days in office, has been reinstated by a federal judge of the U.S. District Court for the District of Columbia. The judge ruled that the president does not have the authority to remove a sitting NLRB member without cause.
Quick Hits
- A federal judge in Washington, D.C., reinstated NLRB Member Wilcox, reversing President Donald Trump’s removal.
- The judge held that the president lacks authority to remove NLRB members at will.
- The decision is likely to be appealed, as it raises constitutional and separation of powers questions, the answers to which could significantly impact the Trump administration’s actions.
On March 6, 2025, U.S. District Judge Beryl A. Howell ordered that Wilcox be reinstated to the Board and complete her five-year term, which expires on August 27, 2028.
President Trump removed Wilcox—a Democratic appointee to the NLRB and briefly the NLRB chair—from the Board on January 27, 2025, leaving the Board with only two sitting members and without a quorum to hear cases. Wilcox later filed a lawsuit challenging the legality of her removal, alleging her removal violated the National Labor Relations Act (NLRA) because it was without notice or a hearing and without an alleged cause.
Judge Howell granted summary judgment for Wilcox on the claims and enjoined NLRB Chair Marvin Kaplan, whom President Trump had tapped to replace Wilcox as chair, from “removing [Wilcox] from her office without cause,” “treating [her] as having been removed from office,” or “impeding in any way her ability to fulfill her duties as a member of the NLRB.”
“The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law,” Judge Howell wrote in a thirty-six-page memorandum opinion. “Defendants concede that removal of plaintiff as a Board Member violates the terms of the [NLRA], … and because this statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained.”
Wilcox’s legal challenge has raised significant constitutional and separation of powers issues, and Judge Howell’s decision is likely to be appealed. In 1935, the Supreme Court of the United States, in Humphrey’s Executor v. United States, upheld restrictions on the president’s authority to remove officers of certain types of independent agencies—in that case, a commissioner of the Federal Trade Commission. The Wilcox case, however, is the first attempt to remove an NLRB member by the president without alleged cause.
The NLRA provides the president with the power to appoint NLRB members “with the advice and consent of the Senate” to five-year terms and to remove “any member … upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Judge Howell rejected the Trump administration’s argument that removal protections presented an “extraordinary intrusion on the executive branch,” finding “NLRB Board members’ removal protections … consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements.”
“That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence,” Judge Howell wrote.
Next Steps
If not stayed by a federal appeals court, the decision will reinstate Wilcox to the NLRB, at least for now, as the case is likely to be appealed and could potentially land at the Supreme Court, given the constitutional questions. Wilcox’s removal had left the NLRB with only two sitting members: Republican-appointee Kaplan and Democratic-appointee David Prouty. Without a quorum, the NLRB had been unable to hear a growing backlog of cases.
The reinstatement reverses President Trump’s apparent move to shift labor policy away from the union-friendly priorities of his predecessor. The same day he removed Wilcox, President Trump also discharged NLRB General Counsel Jennifer Abruzzo. The president later appointed William B. Cowen as the NLRB’s acting general counsel. Cowen has rescinded many of the former general counsel’s memoranda that laid out her aggressive policy agenda.