On March 28, 2025, the United States Court of Appeals for the District of Columbia Circuit temporarily stayed a prior order by Judge Beryl Howell of the United States District Court for the District of Columbia reinstating National Labor Relations Board Member Gwynne Wilcox after President Trump attempted to fire her from her position. This latest twist in the ongoing legal saga over the membership of the NLRB and the President’s ability to remove Members of the Board has once again left the NLRB without the quorum needed to conduct business and issue decisions.
To briefly recap, President Trump removed Member Wilcox from her position a week after taking office. The aggressive move to rapidly reshape the NLRB and its priorities was the first time in the history of the Board that a President removed a Member. In the district court, Judge Howell ordered that Member Wilcox be reinstated, holding that the President lacks legal authority to fire NLRB Members at will. Judge Howell cited the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States as binding authority prohibiting presidential removal of officers of independent agencies. As expected, the administration appealed that decision, and Judge Howell declined to stay her order pending the disposition of that appeal.
On appeal, the government conceded that Congress had prohibited President Trump from firing Member Wilcox in the manner he did and instead argued that the statute prohibiting such removal was an unconstitutional infringement on the executive power. Before proceeding to the merits of that argument, two members of the three-judge panel voted to stay Judge Howell’s order. Judges Karen L. Henderson (appointed by President George H.W. Bush) and Justin R. Walker (appointed by President Trump in his first term) granted the stay. Judge Patricia Millett (appointed by President Obama) dissented.
The two judges in the majority on this issue issued separate statements explaining their rationale for granting the stay. Judge Walker issued an extensive concurrence explaining his view that the Constitution vests the President with authority to remove members of independent agencies and explaining that the government would suffer irreparable harm if the district court’s order remained in effect pending the appeal. Judge Henderson agreed with Judge Walker’s view on irreparable harm, but expressed a bit more reservation as to whether the government is likely to prevail under existing precedent. She nonetheless concluded that, on balance, the government had met its burden to issue a stay. Judge Millett both explained her view that statute and precedent prohibited the President’s removal and noted the practical concern that the stay will prevent the NLRB from conducting business.
The next step will be the court issuing a decision on the merits of the appeal. Typically, a decision granting a motion to stay a district court’s order is an indication that the court may be at least initially inclined to reverse. Here, Judge Henderson’s more tepid assessment of the strength of the government’s case creates some uncertainty as to whether this case will conform to expectation, but readers should not be surprised if the D.C. Circuit ultimately vacates and reverses Judge Howell’s order. In either result, it is likely that this case will soon be before the Supreme Court, which will have the final word on the President’s ability to remove NLRB members at will.
Although the ultimate outcome of this case in the D.C. Circuit or beyond is uncertain, the impact of the D.C. Circuit’s stay is clear. The NLRB again lacks a quorum and cannot issue decisions or fully conduct business. Unless the D.C. Circuit ultimately affirms the district court, the NLRB may remain quorum-less until the Supreme Court reaches the merits of the case or new member are appointed and confirmed. We will continue to provide updates as the case progresses.
Authors: Michael Shoenfelt and Rebecca Hill