Back in May 2025, the U.S. Supreme Court declined to intervene early in the lawsuit filed by former NLRB chairperson Gwynne Wilcox regarding Trump’s authority to terminate her employment with the NLRB. As I wrote about earlier this year, Trump fired Wilcox before her term had ended, leaving the National Labor Relations Board (NLRB) without a quorum to make high level agency decisions. [Read more: Trump Removes EEOC Commissioners and NLRB Members]. A prior Supreme Court precedent from the 1930s (Humphrey’s Executor v. U.S.) indicates that the president does not have authority to remove executive agency board members without cause, but the Executive Branch seems intent on challenging that precedent. The Supreme Court, with its conservative majority, has leaned towards overturning Humphrey’s Executor in more recent decisions.
Trump’s Authority to Fire NLRB Members is the Issue Before the Court
Wilcox filed a lawsuit against the U.S. government, alleging that she was wrongfully terminated and that Trump does not have the authority to remove a member of the NLRB without a hearing that proves malfeasance or willful neglect of duty. She was provided no hearing, and Trump made no allegations of malfeasance or neglect. Rather, the whole case depends over Trump’s authority to make a termination of a board member for any reason. The EEOC commissioner who was fired also filed a lawsuit, which is pending. [Read more: EEOC Commissioner Fired by Trump Files Lawsuit Over Termination]
Wilcox’s case has worked its way up the court system. The lower court (the trial court) issued a ruling that voided Wilcox’s termination while the case moved forward. This ruling required the NLRB to reinstate Wilcox in the meantime. The Trump Administration filed an emergency appeal to the Supreme Court to stay the trial court’s reinstatement order while the appeal was heard, which the Chief Justice granted. Then, on May 22, 2025, a majority of the Supreme Court granted a permanent stay to the trial court’s order. The case will still move forward at the trial court level, but Wilcox will not be reinstated in the meantime.
While the case about Trump’s authority in this matter has not been decided on the merits, the conservative majority has intentionally tipped its hand as to what the ultimate decision will be, once the case reaches the highest court. The majority wrote in their May 22 order that “the Government is likely to show that both the NLRB … exercise[s] considerable executive power.” The Court later writes that whether the NLRB falls within a recognized exception to the Executive Branch’s power is better determined after full briefing and argument in the lower courts, not on an emergency appeal. Thus, the Supreme Court has not decided one way or another whether Wilcox’s argument will win, but the majority has indicated its preference for a broader application of executive powers. We probably won’t know the result of this case until late June 2026 at the earliest.
In the meantime, Trump announced last week that he has nominated two new board members for the NLRB, who, if confirmed, would restore a quorum to the Board. Both nominees would need to be confirmed by the full Senate before they can take their seats on the Board. These nominees would likely be more employer friendly, but at least they are experienced labor or employment lawyers, unlike Trump’s nominee for an EEOC post, who has virtually no applicable experience in employment law. [Read more: Trump Nominates New Commissioner for the EEOC].
Takeaways for South Carolina Employees
I expect that the Supreme Court will uphold Trump’s authority to remove members of the NLRB without cause and will likely overrule or limit Humphrey’s Executor. This would be in line with the Court’s recent swing in favor of executive power and will have lasting impacts on the balance of powers between the three co-equal branches of government.
For South Carolina employees, though, the more immediate impact is quite a bit less. It will likely be many months before the new NLRB members are confirmed, so the lack of a quorum will continue to create a backlog on pending cases that have been tried and are awaiting an agency decision on any appeals. If you have a pending NLRB case that goes to trial, just know that the wait time on the appeal will be much longer.
Most often these types of claims under the National Labor Relations Act arise when employees are discussing the terms and conditions of employment among themselves, including wages or discipline practices or harassment at work, and then the employer fires the employees. Companies are prohibited from firing employees who are discussing the terms and conditions of employment, thereby engaging in concerted activity. Read More: Filing NLRB Claims in South Carolina] If you have experienced that type of violation at work, please contact our office at 864-233-4351 or via our Contact Us page to provide additional information.
