Quick Hits
- The Supreme Court declined to hear former NLRB member Gwynne Wilcox’s challenge regarding the president’s authority to remove NLRB members, effectively ending her case for reinstatement.
- This decision leaves in place a D.C. Circuit decision holding that the president’s power to remove NLRB members could not be restricted by Congress.
- The decision aligns with Trump v. Slaughter, in which the Court upheld the president’s authority to remove a Federal Trade Commission member without cause. It is now clear that the Slaughter decision extends to NLRB members.
Discussion
The Supreme Court denied the petition for a writ of certiorari in Wilcox v. Trump, without explanation, as is customary. The denial puts an end to Wilcox’s legal challenge seeking reinstatement. In light of its decision in Trump v. Slaughter, the high court saw no need to examine the language of the National Labor Relations Act (NLRA) limiting removal for “neglect of duty or malfeasance in office.” Such congressionally imposed restrictions were held in Slaughter to violate the United States Constitution’s separation of powers.
The denial leaves in place a decision by the U.S. Court of Appeals for the District of Columbia Circuit holding that “Congress cannot restrict the President’s ability to remove” an NLRB member since the agency “wield[s] substantial executive power.” Prior to that ruling, the Supreme Court had stayed an earlier D.C. Circuit ruling in Wilcox’s favor and had declined to grant her earlier petition for a writ of certiorari.
As noted, the petition followed the Supreme Court’s June 2026 decision in Slaughter, which held that the statutory for-cause removal provision for Federal Trade Commission (FTC) members violated the Constitution’s separation of powers because it infringed the power of the executive branch. That decision, which overturned the 1935 precedent in Humphrey’s Executor, reasoned that “for-cause” removal protections for officers of federal agencies wielding significant executive power violated the separation of powers enshrined in the Constitution.
Wilcox, who was nominated by former president Joe Biden in 2021, argued that the NLRB is distinct from the FTC and “unique among independent federal agencies” in that the five-member Board acts as an independent court of appellate-like judges. She argued that “the Board’s removal protections ensure its legitimacy as a neutral arbiter of labor disputes.”
Wilcox and former Merit Systems Protection Board (MSPB) member Cathy Harris had filed legal challenges following their sudden removals by President Trump in 2025, shortly after he took office for his second nonconsecutive term. The Supreme Court declined to hear Harris’s case in June 2026.
Key Takeaways
Wilcox’s case had raised questions about whether the NLRA’s for-cause removal protections restricted the president’s ability to remove NLRB members. The denial of Wilcox’s petition preserves the current composition of the NLRB, which has a 3–1 Republican majority. The denial also avoids serious questions regarding her potential reinstatement after more than a year and how that would impact the legitimacy of Board decisions issued during her time out of office.
Moreover, the Wilcox decision reinforces a central teaching of Slaughter—that so-called “independent agencies” are not actually “independent.” To the contrary, they are directly accountable to the chief executive.
Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations blogs as additional information becomes available.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.
Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts
“Ogletree Deakins has experienced professionals in all areas of labour and employment law who provide efficient, client-focused service. We represent employers of all industries and sizes, from small businesses to Fortune 50 companies.”
Please visit the firm link to site
