Trump says labor law cannot prevent him from cleaning house at labor umpire agency

President’s Trump’s letter firing National Labor Relations Board (NLRB) Chairwoman Gwynne Wilcox and the NLRB’s general Counsel, Jennifer Abruzzo, makes the bold claim that the National Labor Relations Act, the federal law that created the board, is itself unconstitutional.

Specifically, Trump claims that he should have the power to fire board members at will despite the NLRA specifically prohibiting that. It’s an unprecedented challenge to the law by a sitting president. Wilcox and Abruzzo are contesting their firings in court. Should Trump ultimately prevail, it will give him and any future president direct control over the federal agency that oversees union/management relations in the private sector.

Trump’s Jan. 27 letter to Wilcox and Abruzzo states that he is firing them for cause, claiming that recent actions by the board “vastly exceeded” the bounds of the NLRA. A footnote acknowledges that the NLRA states that the president may only remove board members “upon notice and hearing, for, but for no other cause.”

The same footnote then argues that the NLRA is wrong to restrain the presidency in this manner and therefore the president doesn’t need to show cause. He can simply fire them at will. “[T]his limitation [by the NLRA] is inconsistent with the vesting of the executive Power in the President and his constitutional duty to take care that the laws are faithfully executed and thus does not operate as a restriction on my ability to remove Board members,” the president’s letter stated. It did not mention the notice-and-hearing requirement.

Notably, the letter appears at several points to erroneously identify Abruzzo as a boardmember, while simultaneously calling her by her correct title, general counsel. Abruzzo’s firing follows a precedent created by President Biden’s firing of her predecessor, John Ring, in January 2021. That firing was unprecedented at the time but subsequently upheld by the courts.

The extent of the president’s power to fire the heads of federal agencies has long been controversial. The Supreme Court’s 1935 ruling in the case Humphrey’s Executor said that that president could be limited by Congress to only firing at will those agency officials who themselves had executive-level power and authority, i.e., the heads of the agencies. Lower-level officials could only be fired for cause, which would require the White House to state and document the reason.

The president’s letter firing Wilcox and Abruzzo made its case in two ways. It argued first that the NLRB officials exceeded their authority under the NLRA, citing in particular a recent district court decision that nullified a NLRB rulemaking as cause for firing them.

Wilcox and Abruzzo have certainly made an aggressive attempt to use the NLRB’s rulemaking power to advance the interests of organized labor. Those who would prefer that the NLRB be a neutral umpire in disputes between unions and management will not be sad to see them depart. It is a stretch, however, to argue that their actions qualify as “neglect of duty or malfeasance in office” rather than the usual tilt of partisan politics.

Trump’s letter further asserted, however, that the president doesn’t need to make such a showing to fire NLRB officials. The letter argues that Board members are part of the executive branch because they have policy making authority and therefore are not covered by Humphrey’s Executor. “Board members have broad policy making responsibilities and thus are not inferior officers,” Trump’s letter stated

The letter also stated that the board is not “balanced along partisan lines,” as proof that it is part of the executive branch. This would seem to be in error since the NLRB’s membership has traditionally been split 3-2 along party lines. The White House picked the majority member, which gives the president’s party majority control. However, this balancing is only a tradition. Nothing in the NLRA requires the board to be split along party lines. The president could, hypothetically, nominate only members from one party to serve on the NLRB. The 3-2 tradition emerged as a method to ease the nominees through the Senate confirmation process.

Further thoughts on the qualities of the constitutional arguments are forthcoming from my CEI colleague Devin Watkins.