In the latest chapter in the evolving fight over the scope of executive power, the en banc D.C. Circuit reversed its prior stay, pending appeal, of the District Court’s order to reinstate Gwynne Wilcox to the NLRB. This means the District Court’s order reinstating Wilcox would have again been back in force. The D.C. Circuit also denied the Trump Administration’s request for a 7-day stay so it could seek Supreme Court review. However, within two days of that decision, Chief Justice John Roberts Jr. granted the Administration’s request for an administrative stay, pending further orders from the Supreme Court.
To briefly recap, President Trump removed Wilcox from the NLRB shortly after taking office. Wilcox sued, arguing the circumstances of her removal violate the NLRA’s statutory protections for Board Members. Judge Howell of the U.S. District Court for the District of Columbia ordered Wilcox to be reinstated under longstanding Supreme Court precedent which allows Congress to insulate certain officers from Presidential removal without cause. The Trump administration appealed that decision and sought a stay of Judge Howell’s reinstatement order. A 3-judge panel for the D.C. Circuit agreed with the Trump Administration and issued a stay on the basis that the NLRA’s restrictions on the President’s removal power are likely unconstitutional.
Without a hearing on the merits, the full D.C. Circuit reversed the 3-Judge panel’s March 28 stay and effectively reordered Wilcox’s reinstatement to the Board. The Court emphasized that the precedents which allow some executive officers to be protected from Presidential control are still good law and that the recent Supreme Court cases which the 3-Judge panel relied on have not been extended to cover adjudicatory positions, like those held by NLRB Members.
The decision was not unanimous, however. Circuit Judges Henderson, Katsas, Rao, and Walker dissented and expressed concerns about the implications of the majority's decision. They argued that the district court's injunctions, which effectively reinstated officials removed by the President, overstepped the bounds of judicial authority and encroached on executive power.
Judge Rao, in particular, highlighted the nature of the district court's injunctions. She argued that the remedies imposed by the District Court were beyond the scope of traditional equitable authority and risked creating a constitutional clash between the judiciary and the executive branch.
With Member Wilcox back on the Board, the NLRB would have once again had a quorum and could resume issuing decisions. However, the Trump Administration appealed to the United States Supreme Court, seeking a stay of the District Court’s reinstatement order and asking the Supreme Court for an administrative stay while it considers the issue. Chief Justice Roberts granted the stay and gave Wilcox until April 15 to respond to the Trump Administration’s request for a stay of the reinstatement order. This means that Member Wilcox is once again removed from the Board until the Supreme Court speaks on the stay. As of this writing, the D.C. Circuit is still scheduled to hear merits arguments on May 16.
