Independent agencies help Americans
The mission of independent agencies, which are housed in the executive branch, is to help safeguard the well-being of all Americans. Independent agencies, which include the NLRB, the Federal Communications Commission, the Consumer Product Safety Commission, and many others, are staffed almost exclusively by nonpartisan experts. Their many tasks include protecting consumers from unsafe products, enhancing workers’ rights, improving highway safety, and preventing big banks from scamming people.
Importantly, as explained in prior CAP products, the persons who helm independent agencies are generally selected by the president and the leaders of the minority party to ensure these agencies are bipartisan as they consider things such as rulemakings and enforcement actions. In setting up independent agencies, Congress has intended for agency leaders to be immune from day-to-day political interference.
The bedrock case of Humphrey’s Executor protects independent agencies
Independent agencies owe their existence in substantial part to the Supreme Court’s foundational 1935 opinion in Humphrey’s Executor. In that case—which involved the Federal Trade Commission, an agency led by a multimember commission—the Supreme Court unanimously ruled that the president did not have unlimited power to dismiss a commissioner where the underlying statute made clear that dismissal must be “for cause.” The high court held that when agency leaders perform “quasi-legislative” or “quasi-judicial” functions (i.e., policymaking or adjudicating), they are not exercising pure executive power, and for-cause removal requirements do not impede a president’s ability to perform his core constitutional duties. Since 1935, multiple Supreme Court cases have reinforced the reasoning of Humphrey’s Executor, although the 2020 case of Seila Law v. CFPB determined that removal protections for agency leaders only apply to agencies that have multimember commissions and do not wield substantial executive power.
NLRB board member fired in violation of Humphrey’s Executor
Under the National Labor Relations Act (NLRA), board members can only be fired for wrongdoing or neglect of duty, and they must be provided with notice and a hearing before removal. As stated above, Wilcox was fired without cause and via an email no less—thereby receiving none of the protections mandated by the NLRA. Wilcox filed suit on February 5, stating that her removal was in blatant violation of Humphrey’s Executor.
Importantly, Wilcox’s removal impairs the functioning of one of this country’s most important independent agencies. The NLRB protects workers’ rights from coast to coast, ensuring that employees cannot be fired or retaliated against for attempting to unionize or improve their working conditions. Wilcox’s firing effectively immobilizes the NLRB because without Wilcox, the board cannot reach quorum and therefore cannot safeguard workers’ rights.
Federal judge hears oral argument in Wilcox v. Trump
At oral argument on March 5, 2025, Judge Howell appeared to be more receptive to Wilcox’s arguments. Wilcox’s attorneys asserted that her firing was an open-and-shut violation of Humphrey’s Executor, not inconsistent with Seila Law. They posited that the statutory removal restrictions do not impede the president’s powers over the executive branch and that President Trump’s sweeping vision of his powers is a startling departure from well-settled constitutional laws and norms.
By contrast, the Trump administration contended that even though the NLRB has a multimember board, its board members wield substantial executive power, and therefore any removal restrictions run afoul of both Humphrey’s Executor and Seila Law. It is noteworthy that the Trump administration did not explicitly argue for overturning Humphrey’s Executor, despite pushing for that result in a recent letter penned by the acting solicitor general.
For her part, Judge Howell spent much of the hearing asking both sides to clarify their interpretations of Humphrey’s Executor, often focusing on the dividing lines between executive power and quasi-legislative or quasi-judicial power. Per Howell, the Trump administration’s broad view of executive power could lead to every independent agency being deemed to unconstitutionally wield executive authority, effectively invalidating all removal restrictions without explicitly overturning Humphrey’s Executor. It would not be surprising if Howell’s eventual decision focuses on this point.
Judge Howell also highlighted the Trump administration’s related actions to weaken independent agencies, namely the above-mentioned solicitor general’s letter and the February 18 executive order that placed all independent agencies—other than parts of the Federal Reserve—under the Office of Management and Budget’s control. The government’s attorney had no good answer to the question of why the president needs removal power for every independent agency other than the Federal Reserve. As Wilcox’s attorneys made clear, there is no logically consistent answer to that question.
It is not yet clear when a decision in Wilcox can be expected, but given the emergency posture of the motion, it will likely come this month. In Dellinger v. Bessent, another unlawful firing case related to Humphrey’s Executor, the D.C. District Court issued its decision within one week of the motion for summary judgment. The trial court in Dellinger sided with the fired employee, reinstating him based on Humphrey’s Executor and subsequent removal cases.
Conclusion
Although today’s oral argument appeared to go well for Wilcox, Humphrey’s Executor is far from safe. Dellinger has already been appealed to the D.C. Circuit, and if the trial court sides with Wilcox, that case will soon follow. Whether or not Humphrey’s Executor stands the test of time will come down to what happens when either or both of these cases reach the Supreme Court. For the millions of Americans whose health, safety, and prosperity depend on independent agencies, the outcome of these cases could be crucial.