Labor & Employment Law Daily Wrap Up, ON THE LABOR FRONT—Supreme Court presages outcome in Wilcox lawsuit against President Trump, (May 29, 2025)
Organizations Mentioned:National Labor Relations Board
By Michael J. Soltis
Some of the debate about this case is that the Supreme Court has not overruled Humphrey’s Executor so lower courts remain bound by it.
As Gwynne Wilcox’s lawsuit against President Trump for removing her from the National Labor Relations Board (NLRB) moves apace on two fronts, the stars are aligning… and not in her favor. The merits front deals with whether a president has authority to remove a member of a multi-member board, without cause, before the expiration of her term. The stay front deals with whether the district court’s order to allow Wilcox to resume her responsibilities at the NLRB while the merits play out in court should be stayed. The two fronts intersect because a factor in deciding whether the district court’s resumption order should be stayed is the likelihood of Wilcox’s success on the merits.
A week after his inauguration, on January 27, 2025, President Donald J. Trump removed Wilcox from the NLRB, more than three years before the expiration of her term, without cause. Wilcox, a Democratic nominee to the NLRB, sued. In early March, the federal district court ruled in Wilcox’s favor and denied the Administration’s request that her resumption of her Board responsibilities be delayed. The District of Columbia Circuit Court of Appeals, sitting en banc, affirmed the district court’s resumption order.
On April 9, Supreme Court Justice John Roberts stayed that order and referred the issue to the entire Court. On May 22, in a 6-3, two-page decision, the Supreme Court stayed the order that Wilcox be allowed to resume her Board responsibilities pending the resolution of the merits of her case. The stay reflects the Court’s judgment that the Government is likely to show that the NLRB exercises considerable executive power.
To read more about the Wilcox lawsuit, see Mike Soltis’ latest On the Labor Front article: Supreme Court Presages Outcome in Wilcox Lawsuit Against President Trump.
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