Labor & Employment Developments Blog

In his first fifty days in office, President Trump has taken numerous actions to consolidate the power of the Executive Branch. Shortly after taking office, he dismissed heads of multiple Executive Branch agencies and asserted that agency leaders must align with his Administration’s objectives.  While President Trump’s authority to replace many Executive Branch officials is unquestioned, his authority to remove appointees to independent agencies is less clear.

Within his first weeks in office, President Trump removed NLBR Member Gwynne Wilcox as well as EEOC Commissioners Charlotte Burrows and Jocelyn Samuels. The President did not cite any basis for these removals beyond his executive authority to remove officer who do not share the objectives of his administration. The effect of these removals is significant. In the long-term, removing these officials from their offices provides the President with the opportunity to appoint their replacements. Members of these agencies typically serve staggered five-year terms, limiting any single administration’s influence. Terminating these officials provides President Trump the opportunity to stack membership on these boards with his chosen appointees.

In the short-term, however, these removals leave the NLRB and EEOC with just two officials each, and thus short of the quorums needed to take any action. President Trump has already signaled new visions for his priorities within the NLRB, the EEOC, and throughout his Administration.  Turning those visions into established policy can take some time, particularly through the regulatory rulemaking process. By leaving the NLRB and EEOC without quorums, the President has limited these agencies, impacting their ability to enforce priorities and regulations from previous administrations.

Former NLRB Member Wilcox has already brought suit against the administration for her removal, and both former EEOC Commissioners Burros and Samuels have suggested a legal challenge. Courts have generally distinguished between executive branch officials (who are generally removable at will by the President) and officials with quasi-legislative or quasi-judicial authority. Where officials have such quasi-legislative or quasi-judicial authority, the Supreme Court has previously held that the President’s ability to terminate these officials is not absolute. The Administration has defended its actions by arguing that, despite how their structure, the NLRB and EEOC exercise “executive power” and thus fall under the authority of the President. 

This week, Judge Beryl Howell of the US District Court for the District of Columbia rejected the Administration’s position, finding in favor of Wilcox and ordering her reinstated as a Member of the NLRB. The Administration has appealed, and will seek a stay of the order pending their appeal.  Such stays are typically granted, meaning the NLRB will likely remain without a quorum until the appeal is resolved. The President’s actions removing officials from other federal agencies as similarly been challenged, meaning the determination as to the Executive’s authority will likely need to be decided by the Supreme Court.

In the meantime, employers face continued uncertainty out of DC. Pronouncements are coming out of the Administration at a rapid pace, yet so too are legal challenges. Employers are left navigating unclear guidance, unsure how the lack of a quorum might affect pending cases or regulatory enforcement. The members of the KMK Labor and Employment Team are here to help you navigate through any question you may have and put your Company on the path to success.