US judge in case over fired NLRB member questions Trump's broad claim of executive power

By Daniel Wiessner

March 5 (Reuters) - A federal judge on Wednesday questioned President Donald Trump's power to fire a Democratic member of the National Labor Relations Board and seemed deeply skeptical of the expansive theory of presidential power being put forward by his administration.

U.S. District Judge Beryl Howell in Washington, D.C., held a two-hour hearing in a lawsuit by Gwynne Wilcox challenging her unprecedented removal from the board by Trump in January and seeking to be reinstated and finish out her term, which expires in 2028.

Wilcox's firing left the five-member board, which already had two vacancies, without a quorum of three members. That has rendered it unable to issue decisions even in routine cases alleging illegal labor practices. The board, like several other federal agencies, was designed by Congress to be independent of the White House.

Federal labor law says NLRB members can only be removed for "neglect of duty or malfeasance in office." The Trump administration has acknowledged that Trump stated no cause for firing Wilcox, but says the removal protections are unconstitutional because they constrain the president's vast powers to control the executive branch.

It was not clear whether Howell was likely to rule for Wilcox, but she was dubious of claims by Harry Graver of the U.S. Department of Justice, who represents the administration, that the president has unfettered authority to remove officials at every executive agency.

“Just saying that the president alone has the removal power begs the question of whether his exercise of that power can be subject to standards set by Congress,” said Howell, an appointee of Democratic former President Barack Obama.

Graver maintained that the NLRB exercises significant executive functions, including setting labor policies that affect virtually every private U.S. employer by issuing rulings in individual cases. He compared those policymaking powers with Howell's authority as a judge, outside of the executive branch.

“You’re applying the law as is,” Graver told her. “The mandate to the NLRB is to say what labor law should be.”

Howell seemed to disagree with the distinction, telling Graver that the board's main focus of deciding individual cases "seems quasi-judicial" and not an exercise of executive power.

Deepak Gupta, who represents Wilcox, urged Howell to rebuff what he said was the Trump administration's novel attempt to erase boundaries on presidential power that courts have recognized for a century.

"This current executive is taking out for a spin the most extreme version of this theory, which is that regardless of the statutes that Congress has passed the president has untrammeled authority to remove officials, an absolute power of removal," Gupta said.

Trump has attempted to remove officials at other independent agencies, but in some cases has been rebuffed by courts. Just this week, two judges separately ruled that Trump could not fire a member of the board that hears federal employees' appeals when they are fired or an agency watchdog that protects the rights of whistleblowers.

The NLRB is typically made up of three members from the president's party and two from the opposing party. They serve staggered terms, so control of the board generally does not change hands for a year or two into a presidential administration.

About two dozen companies, including Amazon and Elon Musk's SpaceX, have filed lawsuits since last year challenging removal protections for board members and claiming the president should have the power to fire them at will. The companies also argue the NLRB's in-house enforcement procedures are unconstitutional.

Musk is a top adviser to Trump and is spearheading an effort to drastically shrink the federal bureaucracy and slash government spending.

SPEED BUMP

Howell during Wednesday's hearing acknowledged that her ruling would not be the final say on the matter, saying that “this court is merely a speed bump for you all to get to the Supreme Court."

But she thoroughly questioned both sides about the board's history and functions, and court precedent involving agencies with similar structures to the NLRB. She said that Trump's recent exemption of two boards within the Federal Reserve from an executive order expanding his power over independent agencies like the NLRB indicated that his removal powers had some limits.

Graver said he did not know why those specific boards had been exempted, but argued that the president's broad removal powers included the authority to carve out exceptions.

The case is Wilcox v. Trump, U.S. District Court for the District of Columbia, No. 1:25-cv-00334.

For Wilcox: Deepak Gupta of Gupta Wessler

For the Trump administration: Harry Graver and Alexander Resar of the U.S. Department of Justice

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