Three weeks into Trump’s second presidential term, federal courts have already played an important role in attempting to curb the most flagrantly illegal of the new administration’s actions. Lower court judges have told the president he cannot overturn birthright citizenship by executive order, or unilaterally block congressionally mandated spending, or arbitrarily put thousands of USAID employees on administrative leave.
But despite these early signs of a judiciary willing to (try to) check Trump’s power, the far-right capture of the courts—paired with the president’s refusal to be constrained by the law—is setting up a chaotic legal landscape in the years to come. It’s one that, within only a few weeks, is already causing significant harm in the lives of the American people—and especially of workers, whom the Republican Party and the conservative legal movement have spent decades trying to disempower.
On January 27, Trump fired Gwynne Wilcox, a member of the National Labor Relations Board, and Jennifer Abruzzo, the Board’s general counsel. The latter move was widely expected: The General Counsel serves at the pleasure of the president, so while working people may have hoped that Abruzzo, who has spent the last four years shaping the law so that a growing universe of workers were meaningfully empowered to unionize, would be kept in her role, it’s not illegal for Trump to want to replace her with a pro-employer, anti-worker general counsel.
With Wilcox, however, it’s a different story. Unlike the general counsel, the five members of the Board are appointed by presidents for fixed, five-year terms, from which they can be removed only “for cause.” When Trump came into office, there were only three members, due to one longstanding vacancy and one more recent vacancy stemming from the Senate’s failure to re-confirm Lauren McFerran to a new term in December. Two of these sitting members were Democrats and one was a Republican.
By firing Wilcox, one of two Democrats, Trump is attempting to cement a conservative majority on the Board, capable of rolling back critical protections for workers and strengthening the power of corporate bosses to interfere with worker organizing. Perhaps even more ominously, he’s attempting to hamstring independent agencies like the Board, strengthening the power of the executive and only the executive.
(Photo by FREDERIC J. BROWN/AFP via Getty Images)
Wilcox is now suing the administration, asking the courts to reinstate her for the remainder of her term. The law is undeniably on Wilcox’s side. It has been understood as such by Congress, which established the Board and its independent structure, and by all previous presidents, who have refrained from illegally firing its members. Almost a century ago, the Supreme Court declared in Humphrey’s Executor v. United States that independent agencies are constitutional, and that entities like the NLRB can be structured with for-cause removal protections. Wilcox’s case should be a slam dunk in the courts.
And yet, virtually nobody expects that it will be. For years, the far right has been committed to undermining independent agencies like the NLRB. In the 2020 case Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court expanded the president’s ability to fire agency heads unless the agency has a very particular structure—stating, in essence, that in nearly every case, the president can remove the heads of agencies at will. This decision was followed a year later by Collins v. Yellen, which further underscored the notion that Congress has limited ability to create independent agencies. Even before Trump’s inauguration, Elon Musk and the U.S. Chamber of Commerce were suing in the Fifth Circuit, arguing that the structure of the Board is unconstitutional. And on Wednesday, Trump’s acting Solicitor General informed Congress that the Department of Justice intends to ask the Court to overrule Humphrey’s Executor entirely, which would effectively end the existence of independent agencies including the NLRB, the Federal Trade Commission, and more.
Corporate America has had every reason to believe that they’ll be successful in front of the overwhelmingly pro-corporate (and pro-executive power, when the executive in question is Trump) Supreme Court. If the Court extends the logic of its recent decisions in Seila Law and Collins and holds that the NLRB members’ for-cause protections are unconstitutional, Trump can fill her seat on the board, solidifying the anti-worker majority on the Board.
Trump’s firing of Wilcox thus risks setting a dangerous precedent when it comes to executive power in ways that could have significant long-term consequences across the administrative state. And in the meantime, regardless of the eventual resolution, the current reality is that Trump’s decision to fire Wilcox means the Board lacks a quorum, and therefore cannot consider the critical issues impacting the development of the law affecting workers’ ability to organize.
Already, exploitative corporate bosses are trying to take advantage of this: Last week, Whole Foods, the Jeff Bezos-owned grocery chain, asked the NLRB to overturn a recent union victory at one of its Philadelphia stores on the grounds that the NLRB’s regional director lacks the authority to certify union election results when the Board lacks a quorum. It’s a ready-made excuse for corporate bosses at Whole Foods to slow down the unionization process even further: Delaying union organizing is a key union-busting tactic, deployed by bosses whenever possible because, too often, it works.
Donald Trump may not be able to unilaterally overturn the National Labor Relations Act or the right of workers to organize. He can, however, sow chaos for working people, putting another obstacle in the way of their efforts to improve their lives and the lives of their coworkers.
The administration is committed to throwing absolutely everything it can at the American people and the federal courts—not because it will all hold up in the end, but because some of it will. The delay between Trump’s initial actions and the final outcome in court will result in real harm, in real time, for real people. And that, at the end of the day, is the point.
