Trump’s Firings at the EEOC and NLRB Bring Both Agencies to a Halt

Last night President Trump fired multiple people at the NLRB, creating a situation in which the board no longer has a quorum to operate. The NLRB is effectively paralyzed until new members are added.

It wasn’t a surprise when President Trump fired National Labor Relations Board General Counsel Jennifer Abruzzo late Monday. She was a Biden appointee who had used the agency to expand workers’ rights.

But Trump went further, also firing Democratic board member Gwynne Wilcox in an unprecedented move that she has vowed to fight in court.

Due to existing vacancies, Wilcox’s ouster leaves the board with just two members, short of the quorum it needs to adjudicate even routine cases. (The board, when fully staffed, has five members.)

Trump did the same thing at the EEOC with the same result.

Charlotte Burrows, former EEOC chairwoman, and Jocelyn Samuels, a former EEOC commissioner, were both fired from their leadership roles at the agency, Federal News Network has learned…

“Removing me, along with Commissioner Samuels, well before the expiration of our terms is unprecedented and will undermine the efforts of this independent agency to do the important work of protecting employees from discrimination, supporting employers’ compliance efforts and expanding public awareness and understanding of federal employment laws,” Burrows wrote in a statement Tuesday.

He also fired the EEOC’s general counsel. All of this sets up a big legal battle because while no one contests that Trump has the ability to fire the legal counsel for each group, there is a question about whether or not he can fire the board members.

The removal of general counsels is not without precedent: President Joe Biden fired Trump-appointed general counsels at the EEOC and NLRB upon entering office in 2021. Yet dismissing members of independent commissions represents a dramatic break from Supreme Court precedent dating to 1935, which holds that the president cannot remove members of independent agencies such as the EEOC except in cases of neglect of duty, malfeasance or inefficiency.

Trump’s actions leave both five-member boards without enough members to conduct business. The boards now have only two members; Trump must fill the vacancies and await Senate approval.

But the argument over whether or not the president can remove members of the NLRB is not a new one. In fact companies, including Space X, Trader Joe’s, Starbucks and Amazon, have been arguing for at least a year that the structure of the NLRB violates the constitution. In other words, this is a battle that was already headed to the Supreme Court. If anything, Trump’s actions are just accelerating that process a bit.

The NLRB — which oversees unionization votes by workers and adjudicates allegations of illegal union busting — has faced a flurry of legal challenges to its constitutionality, brought last year by SpaceX, Amazon and other high-profile companies, emboldened by a conservative Supreme Court. (Amazon founder Jeff Bezos owns The Washington Post.) Those cases are slowly working through the federal court system. But legal experts say Wilcox’s firing could propel the issue to the high court more quickly.

“The Trump administration along with the architects of Project 2025 are aiming to do away with the National Labor Relations Act,” said Seth Goldstein, a labor lawyer who has represented Amazon and Trader Joe’s workers.

Labor lawyers are right to be worried. I don’t think there’s any way in which the concept of federal agencies acting independently survives the current Supreme Court. The Court has already overturned “Chevron deference” which protected independent agencies from oversight by the courts. The same court is not going to protect those agencies from supervision by the President of the United States.

Putting an end to federal agencies that carry on without supervision from anyone is how you put a stake through the heart of the federal bureaucracy.