Dive Brief:
- Attorneys for both sides agreed that an expedited decision over a request for a stay on district court orders to reinstate fired former National Labor Relations Board member Gwynne Wilcox would be beneficial, per oral arguments made Tuesday in the U.S. Court of Appeals for the D.C. Circuit (Wilcox v. Trump).
- In the request for an immediate stay pending appeal, the defendants said the court’s “unprecedented order works a grave harm to the separation of powers and undermines the President’s ability to exercise his authority under the Constitution.” Defendants characterized the distinct court’s granting of Wilcox’s reinstatement as “extraordinary relief.”
- U.S. District Court Judge Beryl Howell on March 6 ordered that Wilcox be reinstated to her position as a member of the NLRB, ruling that Wilcox was “unlawfully terminated” by President Donald Trump and characterizing the firing as a “power grab” by the president.
Dive Insight:
During oral arguments, the three-member panel — Judges Karen Henderson, Patricia Millett and Justin Walker — appeared undecided on the request for a stay. Millett, a former President Barack Obama appointee, seemed in support of the district court’s ruling and Walker, a Trump appointee, against it, while Henderson, who was appointed by President George H.W. Bush, was more elusive.
In her district court ruling, Howell said the National Labor Relations Act only allows the president to remove independent board members in cases of “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing,” neither of which were the case in Wilcox’s termination.
Under discussion in the Wilcox case is the constitutionality of a 90-year-old U.S. Supreme Court precedent that reaffirmed Congress’ power to create independent boards and commissions and denied the president the ability to remove members of those agencies at will.
Wilcox has previously said her lawsuit is likely the “test case” the president wanted to challenge the 1935 ruling in Humphrey’s Executor v. United States.
The Trump administration appears ready to challenge the Humphrey’s Executor ruling, based on a February letter sent by Acting Solicitor General Sarah Harris to Sen. Richard Durbin, D-Ill, ranking member of the Judiciary Committee.
Per Harris’ letter, “the Department intends to urge the Supreme Court to overrule that decision, which prevents the President from adequately supervising principal officers in the Executive Branch.”
Attorneys also argued Tuesday for an emergency stay of Cathy Harris’ reinstatement, the former Merit Systems Protection Board chair who also was fired by Trump (Harris v. Bessent).
“This case involves an unprecedented claim for essentially unlimited presidential control over independent agencies, as the government’s counsel made clear this morning when he suggested that the President’s removal authority is so broad that Congress could not even prohibit the President from firing agency heads based on gender or age,” Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh said in a statement after the oral arguments. CAC has filed briefs in support of Wilcox.
