
Ted Parker is a student at Harvard Law School and a member of the Labor and Employment Lab.
Yesterday, the Supreme Court granted the Trump administration’s application for a stay on a D.C. District Court’s order to reinstate Gwynne Wilcox to the National Labor Relations Board (NLRB). As John reported last month, Wilcox’s reinstatement order was previously stayed by the Supreme Court on April 9 “pending further order . . . of the Court.” Yesterday’s stay was that “further order.”
In a sense, nothing has changed. Wilcox’s reinstatement continues to be stayed, and her case continues to work its way through the D.C. Circuit (as I wrote about on Monday) headed eventually to the Supreme Court for a decision on the merits. What has changed is that the Supreme Court has now given us more clues about how it may rule once Wilcox’s case gets there. The April 9 stay was a bare order. Yesterday’s came with a two-page justification (with an eight-page dissent by the liberal justices).
It should be emphasized that the Court’s reasoning at this stage is provisional, enough to justify a stay but not final disposition of the case. Still, two of the Court’s interim judgments are highly suggestive.
First, the Court “judg[es] that the Government is likely to show that . . . the NLRB . . . exercise[s] considerable executive power,” making its removal protections presumptively unconstitutional. The Court acknowledges that there are “narrow” exceptions to this doctrine (referring to Humphrey’s Executor) but declines to “ultimately decide in this posture whether the NLRB . . . falls within such a recognized exception,” leaving that question (the one that matters most) “for resolution after full briefing and argument.”
Second, the Court “disagree[s]” with Wilcox’s assertion that this case “necessarily implicate[s]” the removal protections of the governors of the Federal Reserve Board. Judging that the Court would shrink from stripping away those removal protections, Wilcox hoped to tie her cause to the Fed’s, but as Andrew wrote yesterday, the Chamber of Commerce has offered a way of distinguishing the two institutions. The Supreme Court has now signaled its judgment that, at least in principle, the two could be distinguished (a carve-out that may reassure markets).
While both these judgments are concerning, each is qualified: the Court refrained from opining on whether the NLRB removal protections fit within the Humphrey’s Executor exception and on whether the Fed’s removal protections should be distinguished from the NLRB’s. In other words, nothing here is decisive. As before, we will have to wait for Wilcox’s case to make its way through the D.C. Circuit before it can be finally resolved by the Supreme Court.
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July 9
In Today’s News and Commentary, the Supreme Court green-lights mass firings of federal workers, the Agricultural Secretary suggests Medicaid recipients can replace deported farm workers, and DHS ends Temporary Protected Status for Hondurans and Nicaraguans. In an 8-1 emergency docket decision released yesterday afternoon, the Supreme Court lifted an injunction by U.S. District Judge Susan […]
July 8
In today’s news and commentary, Apple wins at the Fifth Circuit against the NLRB, Florida enacts a noncompete-friendly law, and complications with the No Tax on Tips in the Big Beautiful Bill. Apple won an appeal overturning a National Labor Relations Board (NLRB) decision that the company violated labor law by coercively questioning an employee […]
July 7
LA economy deals with fallout from ICE raids; a new appeal challenges the NCAA antitrust settlement; and the EPA places dissenting employees on leave.
July 6
Municipal workers in Philadelphia continue to strike; Zohran Mamdani collects union endorsements; UFCW grocery workers in California and Colorado reach tentative agreements.
July 4
The DOL scraps a Biden-era proposed rule to end subminimum wages for disabled workers; millions will lose access to Medicaid and SNAP due to new proof of work requirements; and states step up in the noncompete policy space.
July 3
California compromises with unions on housing; 11th Circuit rules against transgender teacher; Harvard removes hundreds from grad student union.