Upon assuming office, Pres. Trump has been on a tear. He fired a member of the NLRB commission and its general counsel, both appointed by former Pres. Biden. Trunp fired Gwynne Wilcox, saying she was “far left” with a “radical record.” Long-time practice had been that the Democrat and Republican members of the Board would remain on the Board until their terms expired – even after a change in administration. That practice led to Boards that were relatively bipartisan. This is the first Board member to ever be terminated from the Board prior to expiration of their terms – since the creation of the NLRB in 1935.

Ms. Wilcox has indicated she will pursue all legal remedies after her removal. Those legal avenues likely will include re-visiting the 1935 Supreme Court decision in Humphrey’s Executor v. United States., 295 U.S. 602.

Federal Trade Commission

That decision stablished that Congress can prevent a president from removing a member of the Federal Trade Commission without cause. In effect, the decision removed the FTC from terminations based solely on politics. The National Labor Relations Act established the NLRB. That statue provides that members of the NLRB can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 

But, some conservative lawyers believe that some Supreme Court justices have indicated interest in re-visiting the decision in Humphrey’s Executor. One argument is that the statute creating the FTC requires a political balance. That same requirement is not found in the NLRA. And, in 2020, the Supreme Court ruled in Seila Law v. Consumer Financial Protection Bureau, 591 U.S. 207, that Congress cannot impose a cause requirement for removing the head of the Consumer Financial Protection Bureau. That court distinguished Humphrey’s Executor on the basis that the CFPB was headed by a single director. While, the FTC was governed by a board.

Even so, the administration cited Seila in its letter firing Ms. Wilcox. Ms. Wilcox has filed suit to seek reinstatement. It was nice of Pres. Trump to make it so clear that she was fired due to politics. No one can say the Trump administration does not provide plenty of work for lawyers.