Donald Trump’s attempt to fire Gwynne Wilcox, the only Black woman who has ever served as a Member of the National Labor Relations Board, is blatantly illegal.  Union leaders quickly condemned this action.  Wilcox, a former union lawyer, was appointed by President Biden, and I’m sure management lawyers didn’t always like her decisions.  But, the question now is whether, in the hopes of gaining some short-term advantage, the management bar will remain silent, and therefore, implicitly support Trump’s outrageous maneuver.

The five Members of the NLRB serve staggered five year terms.  The National Labor Relations Act has a clear and simple provision governing the mechanism for a President to remove a Board Member.  The Act provides that “[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  Trump did not provide Wilcox with notice, and no hearing has been scheduled.  In addition, there has been no allegation of neglect of duty or malfeasance in office.  Trump is simply making a naked power grab, hoping that the three Supreme Court Justices he appointed, plus Alito and Thomas, will discover that after 90 years on the books, it turns out that this provision of the NLRA is unconstitutional.

In order to rule for Trump, the Supreme Court would have to overrule a 1935 case, Humphrey’s Executor v. U.S. that addresses this precise question in the context of FDR’s effort to remove one of the commissioners of the Federal Trade Commission.  A ruling for Trump would likely also mean that Trump has the power to remove any and all of the members of Federal Reserve Board, something that might alarm the financial markets.

Having already given Trump immunity for any acts he takes while in office, including obstructing the peaceful transfer of power, who knows how far the Supreme Court will be willing to go?  But, in the meantime, Trump has just paralyzed the agency that referees labor-management disputes across the country.  Bear in mind that Trump could have just nominated two Board Members to fill current vacancies, thereby relegating Wilcox to writing dissents if the new Trump Board tries to overturn Biden-era decisions.  But, instead Trump’s move creates chaos.  First of all, Trump hasn’t even named any nominees for the two open Board seats.  And, even though the Senate will likely rubber stamp his nominees, that will take some time, and in the meantime without a quorum, the Board can’t act at all.  Even after Trump’s nominees are confirmed, any action the Board takes without Wilcox is subject to challenge on that basis.  So, even if employers win, those wins will be thrown out by the circuit courts, applying Humphrey’s Executor.  Maybe the Supreme Court will decide to toss Humphrey’s Executor overboard, but maybe by the time the case gets there, the Court will be looking ahead to a Democratic victory in 2028, and it will decide that some checks on Presidential power are worth saving.

As Trump tries to see how many different constitutional crises he can generate in his first 100 days, the time is now for the management bar to join the fight against Trump’s attempt to be an autocrat. I haven’t been pleased with any of the Republican Board Members over the last 40 years, but as the saying goes, elections have consequences, and I was willing to accept that despite Trump’s campaign rhetoric, his nominees would give employers more leeway, and limit the scope of worker protections.  The process for filling vacant Board seats has been broken for some time.  By tradition, two of the five seats have been reserved for the party that doesn’t hold the White House, but Presidents have often been slow to fill those slots.  And the Senate has refused to confirm nominees on ideological grounds.  But, until now, no Board Member has been removed mid-term.  As the confirmation process has gotten uglier, it’s been harder and harder to attract candidates to serve in these positions, even with the job security promised by a five-year term.  If Trump’s firing of Wilcox is upheld, then anyone Trump appoints over the next four years can expect to be tossed out on January 21, 2029, and this will become the new norm.  In other words, by the time Board Members learn the job, they will be gone.  I’ve always been skeptical about whether the country benefits from cross-partisan friendships among Supreme Court Justices, but those friendships likely make the Court run more smoothly.  Board Members need to figure out how listen to each other, and how to adhere to timelines for getting decisions out the door.  Shorter tenures make it harder for Board Members to reach those accommodations.

In enacting the NLRA, Congress declared it to be the policy of the United States to “encourag[e] the practice and procedure of collective bargaining.”  Unfortunately, most employers have still not acquiesced to that policy.  Employers may think that they would be better off without the NLRA and the NLRB.  But some of those employers may be surprised to learn that before the NLRA was on the books, there was large-scale union organizing and even general strikes in major cities.  Management lawyers may think that their clients are gaining temporary advantage by immobilizing the NLRB until Trump’s new nominees are confirmed.  Or they may just think that this isn’t their fight.  But, maybe they don’t want to live in a world that operates as a race to the bottom, and maybe some of them recognize that government regulation serves as an important check on their clients’ worst instincts, even if they genuinely believe that sometimes the government overreaches.

I’m hoping management lawyers will speak out against Trump’s lawless firing of Gwynne Wilcox.  Maybe I’ve missed something, but so far, all I hear is silence.