Court Rules President Can Remove NLRB and MSPB Members: What’s Next for Independent Agencies and Labor Disputes?
A new court decision may mark a turning point in the modern administrative state. In Wilcox v. Trump, consolidated with Harris v. Bessent, the United States Court of Appeals for the D.C. Circuit held that the president may remove members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) at will, despite longstanding statutes that purported to allow removal only for cause.
The ruling didn’t just upend the fortunes of two displaced board members. It signaled a profound skepticism toward the traditional idea of “independent” agencies — institutions designed by Congress to operate apart from shifting political winds.
It also leaves current labor disputes and the future of employment law enforcement in limbo.
The cases began with an unusual pair of terminations. In January 2025, President Trump dismissed Gwynne Wilcox, a Democratic NLRB member, and Cathy Harris, the Chair of the MSPB, with no allegation of misconduct and well before their terms expired. The impact was immediate and severe. The NLRB, which had already been operating with vacancies, lost the quorum necessary to issue decisions, leaving a long queue of pending unfair labor practice and representation cases in limbo. The MSPB — which is the primary avenue for federal employees challenging adverse personnel actions — was similarly hamstrung.
Both Wilcox and Harris challenged their dismissals in federal court, relying on the clear text of the statutes that govern their agencies. Those laws, unchanged for decades, permit removal only in narrow circumstances — “inefficiency, neglect of duty, or malfeasance in office.” Two separate district judges agreed that the president acted unlawfully and ordered the officials reinstated. Their reasoning was rooted in a familiar precedent: the Supreme Court’s 1935 decision in Humphrey’s Executor, which upheld Congress’ authority to limit the president’s ability to remove commissioners of the Federal Trade Commission. In the district courts’ view, the NLRB and the MSPB were classic examples of the same structural model.
But within days, the Supreme Court stepped in. In short, unsigned orders, the Court stayed both reinstatement rulings, allowing the removals to remain in effect during the appeals. The stays did more than maintain the status quo. They suggested that at least some justices were prepared to revisit—or perhaps even discard—Humphrey’s Executor’s long-accepted framework.
That background set the stage for the D.C. Circuit’s decision. Writing for a divided panel, Judge Gregory Katsas framed the issue through the lens of Article II of the Constitution and presidential control over executive power. He described the NLRB and the MSPB as entities that wield significant executive authority: they investigate, prosecute, adjudicate, and in the NLRB’s case, set national labor policy through both rulemaking and case-by-case decisions. Because these duties fall squarely within what the Constitution assigns to the executive branch, the majority reasoned, their officers must remain accountable to the president. And accountability, in the court’s view, requires the power of at-will removal.
The panel’s opinion cast Humphrey’s Executor as a relic of an earlier administrative era—an era in which the court imagined agencies as “quasi-legislative” or “quasi-judicial” bodies that could be insulated from political influence. In contrast, the majority saw recent Supreme Court decisions as charting a different path, one that emphasizes the president’s constitutional authority to direct and supervise those who execute federal law. By following this trajectory, the panel concluded that the for-cause protections for both Wilcox and Harris were unconstitutional and must be severed from the statutory scheme.
Judge Florence Pan dissented sharply. In her view, the majority had effectively discarded nearly a century of settled doctrine without explicit direction from the Supreme Court, destabilizing the very concept of agency independence. She warned that the decision risked concentrating too much power in the presidency, enabling abrupt political reshaping of institutions whose legitimacy has long rested on their separation from partisan control.
The consequences of the decision are already being felt. The NLRB remains without the quorum needed to issue decisions, and the MSPB’s adjudicatory machinery remains slowed by vacancies. More broadly, the ruling raises pressing questions about the structure of other independent agencies. If members of the NLRB and MSPB cannot constitutionally be protected from at-will removal, it is difficult to see how the FTC, the SEC, the CPSC, or other multimember regulatory commissions — many of which operate under nearly identical removal provisions — are meaningfully different. The opinion invites a wave of challenges that could reshape the administrative landscape.
All of this arrives at a moment when the Supreme Court is poised to address the issue directly. On Dec. 8, the Court heard oral argument in Trump v. Slaughter, a challenge arising from President Trump’s removal of FTC Commissioner Rebecca Kelly Slaughter, also without cause. The D.C. Circuit had ordered Slaughter reinstated, relying straightforwardly on Humphrey’s Executor. But the Supreme Court stayed that decision and then took the unusual step of granting review before judgment. In doing so, the Court explicitly directed the parties to address whether the FTC’s removal protections are unconstitutional and, critically, whether Humphrey’s Executor should be overruled.
The relationship between Wilcox and Slaughter is unmistakable. The D.C. Circuit’s decision reads almost like an anticipatory amicus brief to the Supreme Court: an argument for why the logic of modern separation-of-powers doctrine cannot coexist with the insulation Congress has historically given to independent agencies. Whether the Supreme Court will embrace that argument — or instead preserve Humphrey’s Executor in some revised form — will determine how far-reaching the consequences of Wilcox ultimately become.
For now, the landscape is one of significant uncertainty. The NLRB’s paralysis leaves employers and unions unsure of when their disputes will be resolved, and under what legal standards. Federal employees with pending appeals at the MSPB face similar delays. And across Washington, agencies that have long viewed their insulation as a defining feature may find that independence increasingly difficult to defend.
When the Supreme Court decides Slaughter, it will not simply be settling a dispute over one commissioner’s tenure. It will be choosing the constitutional blueprint for administrative governance in the decades ahead. Wilcox suggests that at least some federal courts are prepared for a world in which the president’s removal power reaches much further than it has in nearly a century. Whether that world becomes our new reality now depends on the justices.
Please contact John Duke or any member of the Phelps labor and employment or labor relations teams if you have questions or need advice.
