Federal Judge Beryl Howell is considering whether President Donald Trump’s firing of National Labor Relations Board member Gwynne Wilcox was illegal.
This case is similar to those of Merit Systems Protection Board Chairperson Cathy Harris and Hampton Dellinger, who heads the Office of the Special Counsel.
Howell acknowledged that this case seems destined for higher courts, maybe even the highest. ‘I realize for both sides this court is merely a speedbump to get to the Supreme Court.’
Lawyers for Wilcox maintain that congressional statute dictates that appointed NLRB board members can only be removed from office for neglect of duty or malfeasance, and that Trump attempted to remove her without cause. According to the plaintiffs, Trump is the first president to attempt to remove an NLRB member.
Howell pointed out that the president has broad powers under Article II to make personnel decisions within the executive branch, asking lawyers for Wilcox whether it was within the powers of a federal judge to step in and block those powers.
‘Congress is elected too,’ said Deepak Gupta, arguing for Wilcox, ‘We don’t have an elected king. Congress makes the law. The president enforces those laws.’
DOJ lawyer Harry Graver argued for the government and agreed that the president did not attempt to fire Wilcox for malfeasance or neglect, but that the president has the power to hire and fire within the administration.
Howell seemed to bristle at Graver’s view of presidential power. ‘Anybody in the executive branch is subject to removal by the president? That is the most extreme version of the unitary executive theory I have ever heard.’
Howell took the arguments and briefings under advisement and is expected to make a ruling in the coming days. For now, Gwynne Wilcox remains out of her job, and the NLRB remains without a quorum, so it cannot resolve any labor disputes.