Independent regulators in ‘real danger' after Trump firings, say ex-NLRB chairs

The Guardian

31-01-2025

Donald Trump has been accused of launching an 'attack on the rule of law' as three former heads of the top US labor watchdog criticized the unprecedented firing of a top official.
The abrupt removal of Gwynne Wilcox from the National Labor Relations Board (NLRB) leaves the agency 'out of business' unless a replacement is nominated, they warned – and highlights a 'real danger' to the independence of regulators and adjudicators now Trump is back in the White House.
In interviews with The Guardian, previous chairs of the NLRB described the dismissal of Wilcox as a 'usurpation' of power that 'reeks of discriminatory motive'.
The White House blamed decisions taken by Wilcox and Jennifer Abruzzo, the NLRB's general counsel, as it fired the pair earlier this week.
The move leaves the agency's board with only two members, short of the quorum of three required to issue significant decisions on US labor disputes. Wilcox, , the first Black woman to serve on the board, has pledged to pursue 'all legal avenues' to challenge her firing.
'It was unprecedented to have a sitting board member terminated because of her positions that she's taken in cases. That is clearly contrary to law,' said Lauren McFerran, chair of the NLRB until last month, when he reappointment was blocked in the US Senate.. 'In this case, the President made no pretense of accusing member Wilcox of any misconduct, which would be ridiculous.
'She's a dedicated public servant. She had a sterling reputation. He did not, to my knowledge, provide her with any opportunity for a hearing or any advanced notice, he just summarily fired her because he disagreed with her decisions as a board Member. That's never happened before.'
Members of the NLRB, according to the National Labor Relations Act, can only be removed by a President 'for neglect of duty or malfeasance in office, but for no other cause.'
McFerran served as a member of the NLRB from 2014 to 2019, was reappointed under the Trump administration in 2020, and chair the agency from January 2021 until December.
'There is real danger in attacking the existence of independent regulatory agencies, particularly independent adjudicators,' she added. 'Congress made a judgment that certain areas of critical government decision making should be insulated from the day-to-day influence of the president. I think that's particularly important when we're talking about people who are functionally serving as judges.'
McFerran also noted given Wilcox's intent to challenge her removal in court, if new board members are appointed, any decisions made without her can be deemed invalid if her termination is overturned, creating uncertainty for federal labor laws.
'We want parties who bring their cases before agencies like the board to have fair tribunals,' concluded McFerran. 'When I was at the board, I never had to worry that if I was hearing a case and I rejected the position of somebody who was an ally of the president, or even rejected the position of the presidentially appointed general counsel, that it would cost me my job. And that's the environment that future board members could be operating in now, which basically just takes away the independence of independent agencies, and I think that's a real loss for the government.'
Wilma B Liebman, who chaired the NLRB from 2009 to 2011, under Barack Obama, and before that served as a board member under Bill Clinton and George W Bush, called Wilcox's termination 'brazen and shocking, contrary to long existing supreme court precedent, the clear language of the statute (the NLRA), and decades of custom'.
'Singling out a Black woman for termination, reeks of discriminatory motive,' Liebman said. 'The White House is perilously rolling the dice here, but their aim obviously is to cause chaos and impede the Board's operation. Her termination, along with the termination of other members of bipartisan multimember boards or commissions, sets a dangerous precedent and threat to the rule of law, further polarizing and politicizing administrative agency operations and the law.'
This goes 'way beyond the state of polarization and politicization that has existed already for years', she added.
Some NLRB functions, such as processing unfair labor practice charges, do not require three serving board members, while the chief administrative law judge can handle some motions and requests without a quorum on the board. But cases where a board decision is required or requested are effectively halted.
While McFerran noted that a lot of 'routine steps' can continue within the NLRB, she warned: 'Push comes to shove, if any party wants to take advantage of the fact that there's not a quorum of the board to try to kind of to put an indefinite pause on their case, they can pretty easily do so.'
Firms including SpaceX, led by Trump ally Elon Musk, and Amazon have filed challenges against the NLRB in court, alleging the agency is unconstitutional. Federal courts are currently reviewing many of these cases, which could eventually reach the Supreme Court.
William B Gould IV, NLRB chair from 1994 to 1998, claimed Wilcox's termination was a bid to weaken the labor movement.
'Trump is playing a role, that he is well used to, and that is the role of usurping the rule of law,' he said. 'I think it's usurpation and an attack on the rule of law to politicize in a way which Congress and the Constitution never intended, to allow for the dismissal of board members when the President doesn't like what they've done.'
It is unclear how the courts will rule on the termination, Gould noted, particularly given the conservative makeup of the supreme court, should it hear the case. Butin the mean time, the removal will 'paralyze the board and put the board adjudicatively out of business', he said, 'which is exactly what Mr Trump and his allies would want, because it promotes the democracy for workers, and they don't want that.'.
A White House official said: 'These were far-left appointees with radical records of upending longstanding labor law, and they have no place as senior appointees in the Trump Administration, which was given a mandate by the American people to undo the radical policies they created.'