Judge Calls for Wilcox Reinstatement, Rules Trump Firing Was Illegal

A U.S. federal judge on Wednesday, March 6, ruled President Donald Trump’s firing of National Labor Relations Board (NLRB) member and former chair Gwynne Wilcox was illegal and ordered her to be reinstated.

The decision by Beryl A. Howell, a judge in the U.S. District Court for the District of Columbia, is highly significant because it:

Upholds a legal precedent called “Humphrey’s Executor” (from the 1935 Supreme Court decision in Humphrey’s Executor v. United States), which makes it illegal to fire workers from independent government agencies without cause.
And, perhaps more prominent, squelches (at least for the moment) the Trump administration’s advancement of a conservative legal doctrine called the “unitary executive” theory, which envisions vast executive authority for a President (i.e., sole authority over the executive branch), even when Congress has historically sought to limit such power.

Among the most powerful passages in Howell’s 36-page ruling were these:

“The framers [of the U.S. Constitution] made clear that no one in our system of government was meant to be king — the President included — and not just in name only. Indeed, the very structure of the Constitution was designed to ensure no one branch of government had absolute power, despite the perceived inefficiencies, inevitable delays and seemingly anti-democratic consequences that may flow from the checks and balances foundational to our Constitutional system of governance.”
“A President who touts an image of himself as a ‘king’ or a ‘dictator,’ perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution. In our Constitutional order, the President is tasked to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary.”
“The President’s interpretation of the scope of his Constitutional power — or more aptly, his aspiration — is flat wrong.”

Howell was appointed to the district court in December 2010 by then-President Barack Obama.

The Trump administration is certain to appeal the ruling and press the U.S. Supreme Court for a review of the Wilcox matter on a micro and macro scale.

The Basis of the Wilcox Case

Board member Wilcox filed a lawsuit on Feb. 5 against the President, claiming her Jan. 27 firing from her position was illegal. Wilcox said that, in a letter announcing her dismissal, Trump wrote that:

The NLRB hadn’t fulfilled its responsibilities to the American people, and
He believes he has the right to remove a board member.

Besides the Humphrey’s Executor precedent, the National Labor Relations Act states NLRB members can only be removed for “neglect of duty or malfeasance in office, but for no other cause.” Prior to the Wilcox matter, no U.S. President had sought to remove an NLRB member.

Wilcox, whose board term is slated to run through August 2028, was one of nearly 300 leaders and workers who were fired, reassigned or told they will be laid off by the Trump administration from government agency positions that are supposed to be protected from at-will firing by the executive branch.

Wilcox Firing Was Just One Domino

One week after Wilcox filed her suit, on Feb. 12, the Trump administration notified the Congressional Judiciary Committee that it will ask the Supreme Court to void the Humphrey’s Executor ruling. A letter by acting solicitor general Sarah Harris to the committee stated the belief that tenure protections for members of certain government agencies such as the NLRB, the Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) are unconstitutional.

In addition, on Feb. 18, Trump signed “Ensuring Accountability for All Agencies,” an executive order that would allow the White House to control independent federal agencies that have traditionally operated outside of its direct supervision and influence. The administration also released a support document, “Fact Sheet: President Donald J. Trump Reins in Independent Agencies to Restore a Government that Answers to the American People”.

The executive order, created to establish “oversight” and “accountability” through “Presidential supervision and control of the entire executive branch,” applies to more than 50 independent agencies. Perhaps most notable for total rewards professionals are the:

NLRB, which enforces the National Labor Relations Act (NLRA), conducts elections to determine union representation and investigates allegations of unfair labor practices (e.g., wages, pay rates, working hours, work conditions).
EEOC, which enforces federal laws that prohibit employment discrimination in numerous areas (e.g., hiring, firing, promotions, harassment, training, wages, benefits).
Pension Benefit Guaranty Corporation (PBGC), which was created by the Employee Retirement Income Security Act of 1974 (ERISA) to encourage the continuation and maintenance of voluntary private defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and monitor pension insurance premiums.
Securities and Exchange Commission (SEC), which requires public companies to disclose how much they pay their executives, and how that pay relates to corporate financial performance.
Social Security Administration (SSA), which assigns Social Security numbers and administers retirement, disability insurance and other benefit programs.

So, in a nutshell, the administration’s moves as well as Wilcox’s court case put significant legal standards and regulatory power under the microscope. Some legal and political experts believe Humphrey’s Executor and related precedents are outdated and superfluous — and get in the way of executive power; others say they remain timely and critical to America’s three-branch government — and prohibit a President from imposing political retribution on workers.

On March 6, one judge in one court case leveled one opinion on all this.

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