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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March 12
EPA terminates contract with second-largest union; Florida advances bill restricting public sector unions; Trump administration seeks Supreme Court assistance in TPS termination.
March 11
The partial government shutdown results in TSA agents losing their first full paycheck; the Fifth Circuit upholds the certification of a class of former United Airline workers who were placed on unpaid leave for declining to receive the COVID-19 vaccine for religious reasons during the pandemic; and an academic group files a lawsuit against the State Department over a policy that revokes and denies visas to noncitizens for their work in fact-checking and content moderation.
March 10
Court rules Kari Lake unlawfully led USAGM, voiding mass layoffs; Florida Senate passes bill tightening union recertification rules; Fifth Circuit revives whistleblower suit against Lockheed Martin.
March 9
6th Circuit rejects Cemex, Board may overrule precedents with two members.
March 8
In today’s news and commentary, a weak jobs report, the NIH decides it will no longer recognize a research fellows’ union, and WNBA contract talks continue to stall as season approaches. On Friday, the Labor Department reported that employers cut 92,000 jobs in February while the unemployment rate rose slightly to 4.4 percent. A loss […]
March 6
The Harvard Graduate Students Union announces a strike authorization vote.