Potential Shake-Up Alert: Can the President Fire The Head of NLRB Without Cause?

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Authored by: Faylynn Edwards | Law Clerk

Nearly a century ago, the U.S. Supreme Court determined the scope of presidential powers over independent federal agencies in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Today, the Supreme Court may soon revisit its decision to determine whether the president has the power to terminate the head of the NLRB or some other agencies, without cause.

The Trump Administration and Gwynne Wilcox

National Labor Relations Board (NLRB) Member Gwynne A. Wilcox has been in and out of her job for the past three months. President Trump first terminated Wilcox from her position in January 2025.Wilcox challenged the dismissal in court, ultimately resulting in the U.S. District Court for the District of Columbia ordering Wilcox’s reinstatement. However, a three-judge panel of the D.C. Circuit Court of Appeals reversed the District Court. Then, the full D.C. Circuit Court of Appeals reversed course yet again and upheld the District Court’s original decision.

On April 9, 2025, the U.S. Supreme Court issued an “administrative stay” of the D.C Circuit’s order in response to an emergency application from the Trump administration, effectively terminating Wilcox once again.

Chief Justice Roberts entered the order staying Wilcox’s reinstatement “pending further order of the undersigned or of the Court.” Now the case is headed back to the D.C. Circuit panel for a hearing on the merits.

It appears inevitable that this case will return to the Supreme Court and the Court will have to decide the continuing viability of Humphrey’s Executor.  The Court’s decision would have implications for firing administrative agency heads.

Humphrey’s Executor v. United States

The Court in Humphrey’s Executor established limits on the president’s ability to fire members of independent federal agencies without cause. The Court stated that the Constitution has never given “illimitable power of removal” to the president. The government in Humphrey’s Executor relied heavily on Myers v. United States, 272 U.S. 52 (1926), in which the Court upheld the president’s right to remove officers who were “units of the executive department.” But in a unanimous decision, the Court found that the agency in that case, the FTC, was different because it was a body created by Congress to perform quasi-legislative and judicial functions. Furthermore, the Court stated that the President cannot remove an appointee to an independent regulatory agency without good cause. However, the Court did not define “good cause” in its opinion.

How The Court Could Rule

 Should the Wilcox case return to the Supreme Court on the merits, as is widely expected to happen, the Court could rule in a few different ways. The Court may either:

• Reaffirm Humphreys’ Executor and uphold that a president cannot terminate the head of an independent federal agency.
• Overturn the case, holding that the power is under the executive branch and the president has the power to appoint whom they want.
• Meet somewhere in the middle by clarifying “for cause” and allow the president to terminate under narrow circumstances.

Potential Impacts

In the event the Court overturns Humphrey’s Executor or it is substantially narrowed, there will be profound implications for federal agencies and employers. Most notably, federal agencies will likely become more beholden to the executive branch. In other words, guidance or regulations by the NLRB and other agencies could fluctuate based on who is in the Oval Office even more than they do now. As a result, employers will have to keep an even closer eye out for new guidance and regulations. Employers may have to adjust how they manage employees and the environment in which they operate.