A federal district court has held that Gwynne Wilcox, a member of the National Labor Relations Board, was “illegally” fired from her job. The court ordered the Board’s current chair to restore her access to the Board and let her serve out the remainder of her term. The administration promptly notified the district court of its intention to appeal the decision and to seek an immediate stay from a federal appeals court. But in the meantime, Member Wilcox’s return will give the Board three active members. That means it appears to have a statutory quorum and can resume operating as normal.

What is the dispute about?

Under the National Labor Relations Act (NLRA), members of the Board serve fixed five-year terms. They can be removed before their terms end only for “malfeasance” or “neglect of duty.” They must also be given “notice and a hearing.” While none of those terms is defined in the statute, they have been understood generally to require a president to show “cause” before firing a member.

That kind of “for cause” protection has become increasingly controversial. In the 1930s, the Supreme Court held that Congress could give limited removal protection to the heads of certain agencies. Most importantly, in Humphrey’s Executor v. United States, the Court held that Congress could protect the commissioners of the Federal Trade Commission (FTC) from removal. The Court explained that the FTC was different from a traditional executive agency. The FTC was run not by a single department head, but by a multi-member expert commission. And the FTC’s duties differed from a classic executive department. For example, the FTC investigated market conditions and prepared reports for Congress, which could inform future legislation. It also investigated and resolved trade-practice disputes through an administrative tribunal. Those activities, the Court said, weren’t purely executive; they were “quasi-legislative” or “quasi-judicial.” So at least to some degree, Congress could legally insulate them from presidential control.

But more recently, that analysis has come under question. Scholars have argued that the case misunderstood basic principles of the separation of powers. And the Supreme Court has bolstered those arguments as it has repeatedly pared back removal protections for executive officers. In a series of decisions, the Court has explained that removal protections interfere with the president’s ability to manage the executive branch. So while cases like Humphrey’s Executor created narrow exceptions, the “general rule” is that the president can fire officers at will.

Citing that general rule, in January, the president fired Member Wilcox. In a short e-mail, his representatives explained that he had lost confidence in her ability to lead the Board. They also said that the Board’s removal protections were invalid; they violated the general rule of at-will removal.

Member Wilcox challenged that decision in court. She argued that regardless of the general rule, the Board’s removal protections fell within the exception established by Humphrey’s Executor. And since Humphrey’s Executor has never been overturned, the president had no right to fire her without cause.

What did the court hold?

The district court agreed with Member Wilcox. The district court held Humphrey’s Executor is still good law and applies here. It still allows Congress to insulate the heads of multi-member expert agencies. The district court applied that description to the Board and held that, like the FTC in Humphrey’s Executor, the Board performs quasi-legislative and quasi-judicial functions. It investigates unfair labor practices and adjudicates them through an administrative process. That process ends with a decision by a three-member panel, which acts like a quasi-court. This structure, the court reasoned, was indistinguishable from the FTC’s structure. So, Humphrey’s Executor still controlled. Wilcox had been validly insulated from removal, and her termination was invalid.

The district court did not, however, order the president to “reinstate” her. Instead, the court ordered the Board’s current chair, Marvin Kaplan, not to prevent her from doing her job. In other words, Kaplan cannot deny her access to the building, block her from accessing the Board’s systems, or otherwise interfere with her ability to serve as a Board member. By framing its order in this way, the court tried to sidestep a debate around whether any court has authority over presidential appointments. The court said it was not ordering anyone to be appointed to anything; it was merely ensuring that Member Wilcox could serve out her original term.

What happens now?

After Member Wilcox was fired, the Board had only two active members. The NLRA sets a three-member quorum, which means that the Board must have at least three members to operate. The Board lacked a quorum while Member Wilcox was gone and so was, in effect, frozen. Her return appears to restore a quorum and allow the Board to resume operating.

But that situation may not last. The appeal and the request for a stay will go first to a federal appeals court in Washington, D.C., and then perhaps to the U.S. Supreme Court. Either of those courts could reverse the district court’s decision and drop the Board back to two members.

The situation is likely to evolve in the coming days. Employers with questions about how the decision affects them should consult experienced counsel.