Several of Donald Trump’s opening moves in his second term have apparently violated the law, setting up possible Supreme Court showdowns that would test how much further the court might seek to move the law in Trump’s and Republicans’ favor. One of the latest such cases comes from a National Labor Relations Board member whom Trump purported to fire, in a dispute that directly calls into question longstanding precedent.
Gwynne Wilcox’s new civil lawsuit challenges Trump’s “unprecedented and illegal” removal of her from the board, which her complaint said “defies ninety years of Supreme Court precedent that has ensured the independence of critical government agencies.”
That precedent is a 1935 case called Humphrey’s Executor, where the court said the president couldn’t remove Federal Trade Commission members for reasons other than those specified by Congress.
In her complaint filed Wednesday in the District of Columbia, Wilcox explains that the administration violated federal law that says NLRB members can only be removed for “neglect of duty or malfeasance in office, but for no other cause” and only after “notice and hearing.” She was confirmed by the Senate to a five-year term expiring in 2028.
The Humphrey’s Executor case might not be a household name. But it was called out in the Project 2025 blueprint that Trump tried to distance himself from during his successful 2024 campaign but has nonetheless foreshadowed some of his latest administration’s early moves.
“The next conservative Administration should formally take the position that Humphrey’s Executor violates the Constitution’s separation of powers,” the lengthy Project 2025 document said, deeming the precedent upholding agency independence “ripe for revisiting — and perhaps sooner than later.” Wilcox’s complaint is mindful of this backdrop. She noted that Trump’s action against her is “part of a string of openly illegal firings in the early days of the second Trump administration that are apparently designed to test Congress’s power to create independent agencies” like the NLRB. She said she doesn’t want to help Trump establish a test case but that “if no challenge is made, the President will have effectively succeeded in rendering the [National Labor Relations Act’s] protections — and, by extension, that of other independent agencies — nugatory.” She noted that Trump’s action against her leaves the five-member labor board without a quorum. So while the case of Wilcox v. Trump could take time to work through the courts, it sets the stage for determining to what extent the Supreme Court will embrace the Project 2025 agenda on this front. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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