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gwynne wilcox
'Legislating From the Bench,' Supreme Court Greenlights Trump Firing of Labor Regulators
Justice Elena Kagan wrote in her dissent that the president believes the 90-year precedent "should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
May 22, 2025
In a decision that alarmed legal experts, the U.S. Supreme Court on Thursday blocked the reinstatement of two labor regulators fired by President Donald Trump in apparent violation of federal law intended to prevent such ousters for political reasons.
The Trump administration asked the high court—which has a right-wing supermajority—to block orders from the District Court for the District of Columbia against the president's removal of Merit Systems Protection Board (MSPB) Member Cathy Harris and National Labor Relations Board (NLRB) Member Gwynne Wilcox.
An unsigned two-page opinion—from which the three liberals dissented—provides the Trump administration that relief, but the majority declined to take up the cases more fully, meaning they will play out U.S. Court of Appeals for the D.C. Circuit. The Hillnoted that the move "leaves both agencies without a quorum required to conduct certain business in the meantime."
In her fiery dissent, Justice Elena Kagan wrote that "for 90 years, Humphrey's Executor v. United States... has stood as a precedent of this court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control."
While the MSPB and NLRB are the focus of this case, "there are many others," she continued. "The current president believes that Humphrey's should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
"Our Humphrey's decision remains good law, and it forecloses both the president's firings and the court's decision to award emergency relief," Kagan added. "Our emergency docket, while fit for some things, should not be used to overrule or revise existing law."
Big, bad legal news from "the shadow docket." 6-3 overturning the stay in Wilcox, the NLRB case. Less than 2 pages of assertions that have been proven historically incorrect. A preview of expanding presidential power and allowing the Trump removals: www.supremecourt.gov/opinions/24p...
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— Jed H. Shugerman (@jedshug.bsky.social) May 22, 2025 at 5:52 PM
Slate's Mark Joseph Stern similarly stressed the significance of Thursday's development on social media, writing that "the Supreme Court just effectively overruled 90 years of precedent on the shadow docket, greenlighting Trump's firing of multimember agency leaders while their cases are pending—despite Congress' effort to protect them against removal. A huge decision."
"The Supreme Court goes out of its way to say that its order today does NOT allow Trump to remove members of the Federal Reserve because it is 'uniquely structured' and has a 'distinct history tradition,'" he noted. "I do not think those distinctions hold water."
The right-wing justices' opinion states that "Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee."
"We disagree," the court's majority said. "The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States."
Multiple other court watchers echoed Stern's take on social media.
They’re not only overturning precedent on the shadow docket, but ~deciding~ other cases in a non-binding (dicta) way to give cover for these actions. Today, this unnamed group of conservative justices, not even claiming this is “per curiam,” say that the Federal Reserve is different. Sure.
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— Chris Geidner (@chrisgeidner.bsky.social) May 22, 2025 at 5:12 PM
"I don't mean to be a caricature, but this just isn't law. The Supreme Court is always making policy. But this is beyond," said Noah Rosenblum, a New York University associate law professor law, summarizing the decision. "'This dicta in an emergency order will reassure the markets but just, uh, trust us on the law here, OK, no we're not overruling Humphrey's yet, and when we do we'll spare the Fed.'"
Christine Kexel Chabot, a Marquette University associate law professor law, said: "The court is legislating from the bench: It has eliminated removal restrictions it finds unimportant while keeping those it finds too consequential to kill (the Fed). Article II provides an undifferentiated grant of 'the executive power,' not one that applies to the NLRB and excepts the Fed."
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Saga of Fired NLRB Member, Who Was Just Reinstated Again, Appears Headed to Supreme Court
If he prevails at the Supreme Court, U.S. President Donald Trump "could gain extraordinary powers to investigate and penalize private businesses and individuals, tilt elections," and more, one outlet noted.
Apr 07, 2025
The full D.C. Circuit Court of Appeals on Monday issued a divided ruling that reinstated two members of labor-focused independent agencies whom the Trump administration had sought to remove. The ruling is likely not the end of the legal saga and the case appears headed to the U.S. Supreme Court.
The federal appeals court voted 7-4 to reverse an earlier decision by a three-member panel of the D.C. Circuit Court of Appeals that upheld the Trump administration's dismissal of National Labor Relations Board (NLRB) member Gwynne Wilcox and Merit Systems Protection Board (MSPB) member Cathy Harris.
Since Trump's return to the White House, Harris and Wilcox have been repeatedly removed and reinstated following contradictory rulings, according to The Guardian.
Monday's ruling was split along partisan lines, with the four dissenting judges all appointed to the court by Republican administrations, perThe Guardian.
Wilcox was first appointed to the NLRB, which safeguards private sector workers' rights to organize, in 2021 by then-President Joe Biden and was re-confirmed for a five-year term by the Senate in 2023. Wilcox's removal meant the body did not have a quorum, because it needs three members to have a quorum. It once again has a quorum and can issue decisions.
As a member and former chair of the MSPB, Harris helped lead an agency that reviews federal employee firings, suspensions, and whistleblower claims.
According to the outlet Democracy Docket, the court ruled Monday that the administration's dismissal of Wilcox and Harris ran afoul of the U.S. Supreme Court's ruling in Humphrey's Executor v. U.S., a 1935 case that upheld removal restrictions for government officials on multimember adjudicatory boards.
"Trump's Department of Justice said it believes congressional limitations on the president's removal power are unconstitutional and that it will urge the Supreme Court to overturn Humphrey's Executor," Democracy Docket reported. "If the Supreme Court ultimately grants Trump the ability to fire members of independent bodies, he could gain extraordinary powers to investigate and penalize private businesses and individuals, tilt elections, and use monetary policy for political purposes."
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'An American President Is Not a King': Judge Reinstates Labor Regulator Illegally Fired by Trump
"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."
Mar 06, 2025
A federal judge on Thursday reinstated Gwynne Wilcox, a Democratic member of the National Labor Relations Board, and suggested that U.S. President Donald Trump's attempt to fire her was an example of the Republican testing how much he can exceed his constitutional powers.
Wilcox filed a federal lawsuit in February, after Trump ousted her and NLRB General Counsel Jennifer Abruzzo. On Thursday, U.S. District Judge Beryl Howell—who was appointed by former President Barack Obama to serve in the District of Columbia—declared Wilcox's dismissal "unlawful and void."
"The Constitution and case law are clear in allowing Congress to limit the president's removal power and in allowing the courts to enjoin the executive branch from unlawful action," Howell wrote in a 36-page opinion. She also sounded the alarm about arguments made by lawyers for the defendants, Trump and Marvin Kaplan, chair of the NLRB.
"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution."
"Defendants' hyperbolic characterization that legislative and judicial checks on executive authority, as invoked by plaintiff, present 'extraordinary intrusion[s] on the executive branch,' ...is both incorrect and troubling," the judge wrote. "Under our constitutional system, such checks, by design, guard against executive overreach and the risk such overreach would pose of autocracy."
She stressed that "an American president is not a king—not even an 'elected' one—and his power to remove federal officers and honest civil servants like plaintiff is not absolute, but may be constrained in appropriate circumstances, as are present here."
"A president who touts an image of himself as a 'king' or a 'dictator,' perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution," Howell asserted. "In our constitutional order, the president is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the judiciary."
The judge cited a widely criticized February 19 social media post from the White House, which features an image of Trump in a crown, with text that states, "Long live the king."
"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," Howell warned. "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."
The president's attempt to fire Wilcox halted federal labor law enforcement in the United States. AFL-CIO president Liz Shuler celebrated Howell's ruling in a Thursday statement, saying that "more than a month after Trump effectively shut down the NLRB by illegally firing Gwynne Wilcox, denying it the quorum it needs to hold union-busters accountable, the court ordered Wilcox immediately returned to her seat, allowing the NLRB to get back to its essential work."
"The court also sent an important message that a president cannot undermine an independent agency by simply removing a member of the board because he disagrees with her decisions," she said. "Working people around the country count on equal justice and fair decision-making from an independent NLRB—and today, because of Wilcox's commitment to the mission of the NLRB and her refusal to stand by as Trump illegally removed her from the board, the NLRB can get back to work."
Wilcox isn't the only federal worker who has challenged the president's power to fire her. As Politicodetailed:
On Thursday, a federal workplace watchdog fired by Trump—Special Counsel Hampton Dellinger—dropped his legal bid to reclaim his post after a federal appeals court permitted his termination. Cathy Harris, a member of the Merit Systems Protection Board, which oversees the grievance process for many federal employees, is also resisting Trump’s effort to remove her and was reinstated last month by a federal judge.
The Supreme Court likely will soon weigh in on Congress' ability to insulate executive branch officials from being fired by the president without cause. With Dellinger's decision to drop his legal fight, Harris' case appears likeliest to reach the high court in the near-term. It’s possible Wilcox's case will get folded into that ongoing fight.
The nation's highest court has a right-wing supermajority that includes three Trump appointees, though they have at times ruled against the president—including on Wednesday, when five justices refused to overturn a lower court order about foreign aid.
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