Supreme Court Temporarily Upholds NLRB Member Termination

The Supreme Court issued an order temporarily upholding President Trump’s termination of Gwynne Wilcox, Democratic member of the National Labor Relations Board (NLRB), setting up a final decision in the coming months.

The bottom line: The order ends any chance of Wilcox returning to the Board while the litigation surrounding her termination continues. The wording of the Court’s order suggests that it is likely to ultimately find her termination to be within Presidential authority.

Background: President Trump terminated Wilcox (among many other Democratic agency leaders) in February, setting up a major legal battle over the President’s authority to terminate Senate-confirmed independent agency heads.

• Since her initial termination, Wilcox has been reinstated twice and re-fired twice, with the last decision coming from the 4^th Circuit Court of Appeals which once again sidelined the former NLRB Member.

Supreme Court order: The Court upheld the 4^th Circuit’s decision, which keeps Wilcox on the sidelines until a final decision is reached on the legality of her termination. The Court found that the Trump administration “faces greater risk of harm” if Wilcox was allowed to remain on the Board.

Temporary – for now: The Court’s order is not the final say on whether the President has the authority to terminate NLRB Members without cause 

• However,  the Court’s conservative majority noted that it is “likely” that “the NLRB…exercise[s] considerable executive power,” making it extremely likely that the Court will ultimately uphold the President’s ability to fire Members without cause. 

• In the meantime, the NLRB lacks the quorum needed to issue decisions.