A federal judge says Gwynne Wilcox must remain at the agency that oversees relations among workers, labor unions and employers, setting up a Supreme Court showdown.
By Lauren Kaori Gurley and Julian Mark / Washington Post / March 7, 2025
A federal judge on Thursday blocked President Donald Trump from firing a Democratic member of the National Labor Relations Board, calling the dismissal “flat wrong” in a ruling that could set up a Supreme Court showdown over the parameters of presidential power.
In a 36-page order, U.S. District Judge Beryl A. Howell of the District of Columbia said Trump’s dismissal in January of Gwynne Wilcox from the agency — which oversees relations among workers, labor unions and employers — violated the National Labor Relations Act.
“The President’s interpretation of the scope of his constitutional power — or, more aptly, his aspiration — is flat wrong,” wrote Howell, an Obama-era appointee, in an accompanying 36-page memo. “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.”
Anna Kelly, a White House spokeswoman, said in a statement Thursday responding to the ruling that “a radical liberal judge is attempting to reverse the results of the election by declaring that the democratically-elected President lacks authority to remove an officer wielding executive power the Constitution vests in the President alone.”
Wilcox called her firing “an unlawful attempt to remove me” that “has interfered with the Board’s ability to fulfill its congressional mandate under the National Labor Relations Act.”
“I’m ready to get back to work,” she said.
The ruling marks the third time in recent weeks that a federal judge has determined that Trump illegally dismissed a Senate-confirmed member of an independent agency, part of a wave of firings at multiple agencies.
On March 1, another federal judge in Washington blocked Trump’s removal of Hampton Dellinger as the head of the Office of Special Counsel, which investigates whistleblower complaints filed by government workers. On Wednesday, an appeals court said it would allow Trump to remove the agency watchdog, prompting him to drop his lawsuit Thursday.
Separately, on Tuesday, another judge blocked the firing of the chair of the federal Merit Systems Protection Board, which protects government workers from political discrimination.
As with Tuesday’s ruling, the Trump administration immediately appealed the Wilcox decision. Legal experts said the cases could be quickly taken up by the Supreme Court, whose conservative majority may be sensitive to the argument that the president should have broad jurisdiction over independent agencies.
All three dismissed officials contend that their terminations broke with long-standing precedent, which holds that the president cannot fire members of independent bodies without cause.
In Wilcox’s case, NLRB members are protected by the 1935 law establishing the five-seat board, which also states that the president can only dismiss members in cases of neglect of duty or malfeasance. Her firing marked the first time that a president has terminated an NLRB member.
In a March 5 district court hearing, Deepak Gupta, a prominent Supreme Court litigator representing Wilcox, said that her dismissal was an “effort to try to overturn” a 1935 Supreme Court decision that shields board members of independent federal agencies from removal by the president.
“The idea that I think my friends on the other side have is that the NLRB … has the kind of executive powers that a Cabinet department has,” Gupta said. “And that’s just not true.”
The cases highlight Trump’s efforts to expand presidential authority. Within weeks of taking office, he’d removed more than a dozen inspectors general and fired members of other independent agencies. In February, Trump also ordered a White House review of any draft regulations issued by independent agencies, which have typically operated outside the direct control of the president.
As in the firing of Wilcox, Trump asserted that the “Constitution vests all executive power in the President.”
The terminations also have left certain agencies without the capacity to conduct all of their work. Trump’s dismissals of two of three Democratic commissioners on the Equal Employment Opportunity Commission have left the five-seat body without enough members to vote on matters. Likewise, Wilcox’s termination left the five-member NLRB with two members, paralyzing the agency. Some basic operations, such as union elections, can continue. But without three members, the NLRB cannot decide on cases involving labor law violations.
Congress gave federal agencies — including the Securities and Exchange Commission, the Federal Reserve and the Federal Trade Commission — independence so that they could interpret the law free from presidential interference or preferences, according to legal experts.
“Firing Wilcox deprives workers of the sole agency that is available to enforce their legal right to unionize and collectively bargain,” said Benjamin Sachs, a professor of labor at Harvard Law School. “It has massive implications for working people across the entire country.”
Some employers, including CVS and Whole Foods, have seized on the opportunity to challenge NLRB decisions, including union victories. That has left some workers without a legal path to union contracts or relief in cases of illegal union-busting. (Whole Foods is owned by Amazon, whose founder Jeff Bezos owns The Washington Post.)
In moving to terminate Wilcox, whose five-year term was set to end in 2028, the government argued that the administration relied on a 2020 Supreme Court decision involving the Consumer Financial Protection Bureau that gave the president firing authority over multimember agency boards except those without “substantial executive power.”
But Howell rejected that argument, writing that the Supreme Court has repeatedly reaffirmed a 1935 decision, Humphrey’s Executor v. United States, that holds the president cannot remove members of independent agencies without cause, writing that “presidential removal power has never been viewed as unrestricted.”
She added that Trump could still exercise control of the NLRB by appointing two members, as well as a general counsel, who could execute his agenda, but that “he simply has chosen not to do so.”
Howell highlighted the stakes of the case.
“The President seems intent on pushing the bounds of his office and exercising his power in a manner violative of clear statutory law to test how much the courts will accept the notion of a presidency that is supreme,” the judge wrote.
“The courts are now again forced to determine how much encroachment on the legislature our Constitution can bear and face a slippery slope toward endorsing a presidency that is untouchable by the law,” she added.
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