A federal appeals court ruled that Congress cannot restrict the president’s ability to remove former National Labor Relations Board member Gwynne Wilcox, reversing a lower court’s decision in a closely watched case about the scope of presidential authority.
“Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power” like members of the NLRB and the Merit Systems Protection Board, an independent agency that hears appeals from federal employees, D.C. Circuit Court of Appeals Judge Gregory Katsas wrote in the majority opinion filed Friday.
President Donald Trump fired Wilcox just a week into his second term, leaving the board without a three-member quorum necessary to resolve cases. A significant backlog has built up before the board, which resolves disputes concerning unfair labor practices. Trump removed MSPB member Cathy Harris in February.
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Wilcox and Harris, whose terms were set to expire in 2028, sued the Trump administration to keep their seats. They were reinstated twice before the Supreme Court issued an emergency order in May allowing Trump’s firings while the appeals court considered the case.
In an email firing Wilcox and NLRB general counsel Jennifer Abruzzo, Trump said that the Biden appointees “have improperly cabined employers’ rights to speak on the subject of unionization, raising serious First Amendment concerns.”
“I lack confidence that Commissioners Wilcox and General Counsel Abruzzo can fairly evaluate matters before them without unduly disfavoring the interests of employers large and small,” Trump said in the January email.
The president has nominated labor attorney James Murphy and Boeing chief legal counsel Scott Mayer to fill empty seats at the five member NLRB. Sen. Josh Hawley, who sits on the committee that clears NLRB nominees, grilled Mayer at an October hearing about the airplane manufacturer’s dispute with thousands of workers on strike. The Senate Health, Education, Labor and Pensions Committee approved Mayer’s nomination Wednesday.
Along with general counsel nominee Crystal Carey, Mayer and Murphy are awaiting confirmation by the Senate.
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