Federal Court of Appeals Allows President to Remove NLRB Member Wilcox for Now

A federal court of appeals has allowed President Trump to remove Gwynne Wilcox, a National Labor Relations Board member, while it considers Wilcox’s case. The court’s decision reverses an earlier district court order that had directed the president to return Wilcox to her job. In the short term, the court of appeals’ decision means that Wilcox will again be ousted from her seat, and the Board will again have only two active members. Undecided for now is the larger question of whether the president may remove Board members at will.   

What was the case about?

Under the National Labor Relations Act, Board members can be fired only for “malfeasance” or “neglect of duty.” They must also be given notice and a hearing. But those requirements have become increasingly controversial, with some scholars and judges questioning whether they interfere with the president’s ability to manage the executive branch. Shortly after taking office, President Trump decided to challenge them. He removed several executive officials who were ostensibly protected from removal by statute. Among those officials was Member Wilcox.

Member Wilcox challenged her removal in court. In early March, a federal district court ruled in her favor and ordered the administration to let her go back to work. The administration then appealed to the D.C. Circuit Court of Appeals. In the immediate term, the administration asked the court to stay the district court’s order while the appeal was pending.

What did the court decide?

By a 2-1 vote, the court of appeals granted the administration’s request. The court’s official order was short: it simply granted the request and stayed the lower court’s order. But each of the court’s three judges wrote lengthy separate opinions. Those opinions showed the court is still developing its final view on the case’s core questions. 

First, Judge Justin Walker wrote that the administration was likely to win on the merits. He suggested that the NLRA’s removal requirements were unconstitutional. He reasoned that under recent Supreme Court precedent, Congress could restrict the president’s removal power only for agencies that exercise no “executive power.” And in his view, the Board did exercise that kind of power. The Board administers labor law and develops labor policy for the whole country. So, it is engaged in a core executive function—applying and enforcing the law.

Second, Judge Karen Henderson wrote that she mostly agreed with Judge Walker’s views on the merits. While she thought the question was a closer call, she ultimately agreed that the removal requirements were probably unconstitutional. She also thought that other factors weighed heavily in the government’s favor. For example, Wilcox couldn’t show that she had been irreparably harmed by the president’s decision. Personally, Wilcox had only lost her salary, which could be restored later through backpay. And more broadly, Wilcox had no standing to protect the Board’s “institutional” interests (if any) in preserving the removal requirements. To Judge Henderson, those facts weighed in favor of staying the district court’s order and allowing the president to keep Wilcox out of office for now.

Third, Judge Patricia Millett wrote that she would have denied the stay. She thought that older Supreme Court decisions allowed Congress to protect the heads of certain “independent agencies” from removal. Unless and until the Supreme Court revisits those decisions, she would apply them to the Board. She objected to changing the law through what she saw as a “hurried” process. 

What happens next?

For now, the court’s decision means that Member Wilcox will again be ousted from the Board. In her absence, the Board will have only two active members. Under the NLRA, the Board needs at least three members to have a quorum. Without a quorum, the Board cannot exercise its main functions—including deciding unfair-labor-practice cases.

But the Wilcox case is not over. The court of appeals has scheduled oral argument on the merits on May 16, 2025. Afterward, it will publish a final decision. The judges’ separate opinions suggest that at least two of them are ready to side with the administration. But, they could still change direction.

In the meantime, employers can review the decision and discuss with counsel how the Board’s status affects their matters.