🗞️ Appeals Court Upholds President's Authority to Remove NLRB and MSPB Members

The D.C. Circuit Court of Appeals delivered a significant ruling on December 5, 2025, affirming the President's authority to remove members of certain independent agencies without citing specific cause such as malfeasance or neglect of duty. The case involved Gwynne Wilcox, a Democratic member of the National Labor Relations Board (NLRB), and Cathy Harris, a Democratic member of the Merit Systems Protection Board (MSPB), both of whom were terminated by President Trump within weeks of taking office in January 2025.

The majority opinion, authored by U.S. Circuit Court Judge Gregory Katsas, concluded that both the NLRB and MSPB exercise considerable executive power through their substantive rulemaking authority and broad enforcement powers, including the ability to order reinstatement and back pay. This executive function distinguishes them from purely quasi-judicial or quasi-legislative agencies protected under the 1935 Supreme Court precedent Humphrey's Executor.

Judge Katsas notably declined to address whether this presidential authority extends to purely adjudicatory agencies or to the Federal Reserve, leaving those questions for future consideration. The dissenting opinion by U.S. Circuit Court Judge Florence Pan warned that the ruling could politicize government agency decisions and undermine merit-based decision-making.

Gwynne Wilcox holds historic significance as the first Black woman to serve on the NLRB since its 1935 inception and the first person to be removed from the board by a sitting president in its 90-year history. Following her removal, she filed suit against the Trump administration—a case that remains pending before the U.S. Supreme Court after Chief Justice John Roberts issued a stay. On December 4, 2025, the Sugar Law Center in Detroit honored Wilcox with its essential advocacy award for her distinguished career in labor rights.

The ruling arrives at a critical juncture for federal labor relations infrastructure, as the NLRB has operated without a functioning quorum since the removals in January 2025, stalling internal appeals and limiting the agency's ability to adjudicate labor disputes. Meanwhile, the Senate is considering nominations to restore the board's capacity: on December 3, 2025, the Senate HELP Committee advanced Scott Mayer's nomination by a 12-11 vote, and he joins fellow nominees James Murphy and Crystal Carey in awaiting full Senate confirmation.

This appeals court decision follows a May 2025 Supreme Court emergency order that allowed the removals to proceed, with the Court indicating it was "likely to show that both the NLRB and MSPB exercise considerable executive power." The Supreme Court is scheduled to hear oral arguments on December 8, 2025, in a related case involving the removal of Federal Trade Commission member Rebecca Slaughter, which may further clarify the scope of presidential removal authority over independent agency members.

Key Points

Legal Precedent:

• The D.C. Circuit ruled 2-1 that NLRB and MSPB members can be removed by the President without cause due to their exercise of substantial executive power
• The decision distinguishes these agencies from those protected under Humphrey's Executor (1935), which shields agencies with purely quasi-judicial and quasi-legislative functions
• The majority opinion specifically noted that both agencies possess substantive rulemaking powers and broad enforcement authority

Historic Implications:

• Gwynne Wilcox became the first NLRB member removed by a president in the agency's 90-year history
• Wilcox was also the first Black woman to serve on the NLRB
• The ruling potentially expands presidential control over independent agencies traditionally insulated from political influence

Agency Operations:

• The NLRB has operated without a quorum since the removals in January 2025, preventing board decisions on appeals
• Senate progress on new nominations (Mayer, Murphy, Carey) could restore the board's functionality
• The Third Circuit separately ruled on December 3 that district courts cannot enjoin NLRB administrative proceedings under the Norris-LaGuardia Act

Ongoing Legal Challenges:

• Wilcox's lawsuit against the Trump administration remains pending before the Supreme Court
• The Supreme Court will hear arguments December 8 in a related FTC case that may further define removal authority
• Questions remain unresolved about presidential authority over purely adjudicatory agencies and Federal Reserve governors

Broader Context:

• The ruling occurs amid broader debates about executive power and agency independence
• Labor relations stakeholders view the case through different lenses: some see it as restoring accountability to agencies wielding executive power, while others warn of potential politicization of workplace protections
• The outcome affects the regulatory environment for both employers and workers as labor law enforcement capabilities remain constrained during the transition period

Primary Author: Andrea Hsu, NPR

Primary Source: NPR

Link to Primary Source: https://www.npr.org/2025/12/05/nx-s1-5634705/trump-nlrb-mspb-firing-appeal

Supplemental Links:

• Michigan Advance (December 8, 2025)
• Federal News Network (December 5, 2025)
• CNBC (December 5, 2025)
• Ogletree Deakins (December 5, 2025)
• HRD America (December 3, 2025)