Supreme Court Uses “Shadow Docket” to Sidestep 90-Year-Old Precedent, Allowing Trump to Fire NLRB and MSPB Members Without Cause–for Now

Supreme Court Uses “Shadow Docket” to Sidestep 90-Year-Old Precedent, Allowing Trump to Fire NLRB and MSPB Members Without Cause–for Now

Last week, in Trump v. Wilcox, 605 U.S. ____ (2025), the United States Supreme Court sided with President Trump in a case involving the firings of National Labor Relations Board (“NLRB”) member Gwynne Wilcox and Merit Systems Protection Board (“MSPB”) member Cathy Harris.

Both the NLRB and MSPB are independent federal agencies established by Congress to enforce certain labor and employment laws. The NLRB was established in 1935 to enforce laws governing labor-management relations in the private sector, including those that guarantee the rights of workers to engage in union-related and other protected concerted activity. The MSPB was established in 1979 to protect employees of federal agencies against whistleblower retaliation, partisan political decisions, and other prohibited personnel practices. Each agency is led in part by a bipartisan multimember review board. The NLRB’s Board has five members, each serving a term of five years, while the MSPB’s has three members, who serve seven-year terms. For both agencies, members are appointed by the President with Senate approval and can be removed by the President only for cause.

President Trump fired Wilcox and Harris, both Biden appointees, in January and February of 2025, respectively. He made no attempt to claim that the removals were for cause, openly admitting that the firings were politically motivated. Instead, he argued that the agencies’ for-cause removal protections represented an unconstitutional restraint on the President’s authority to remove executive officers, though the argument ran contrary to the Supreme Court’s precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935). In Humphrey’s, the Supreme Court held that Congress has constitutional authority to establish “quasi-legislative or quasi-judicial agencies” with safeguards to protect them from total presidential control, including for-cause removal protections for their members. Both Wilcox and Harris brought lawsuits challenging their respective removals. In both cases, relying on Humphrey’s, the District Court held that the firings were unlawful, ordering Wilcox and Harris to be reinstated. Trump filed an emergency appeal to the Supreme Court to stay the District Court’s orders.

In a two-page, unsigned decision, the Supreme Court granted Trump’s application. The Court justified the stay on two grounds. First, alluding to the merits, the Court held that “[t]he stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” Second, in terms of the balancing of equities, the Court held that “[t]he stay also reflects our judgment that the Government faces a greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Finally, the Court added the caveat that its order did not implicate the constitutionality of for-cause removal protections in the context of the Federal Reserve.

The three liberal Supreme Court justices dissented from the majority’s opinion. In her dissenting opinion, Justice Elena Kagan dismantled each aspect of the majority’s argument. Justice Kagan highlighted that the majority’s order did not even mention Humphrey’s, which has remained good law for 90 years and directly addresses the question at issue in the case. She criticized the Court for using the emergency docket to effectively modify existing law. The emergency docket, also known as the “shadow docket,” is what the Court uses to address issues requiring its immediate action. The Court handles these cases on an expedited basis with limited briefing and typically no oral argument, and often resolves them with little to no explanation. Justice Kagan emphasized that “nowhere is short-circuiting our deliberative process less appropriate than when the ruling requested would disrespect–by either overturning or narrowing–one of this Court’s longstanding precedents, like our nearly century-old Humphrey’s decision.”

Justice Kagan also addressed the majority’s position regarding the balancing of equities. She began by reframing the inquiry, which the majority portrayed as the interest of the “wrongfully removed officers” vs. that of “the Government.” As to the first side, Justice Kagan noted that “the relevant interest is not the ‘wrongfully removed officer[s’],’ but rather Congress’s and, more broadly, the public’s. What matters, in other words, is not that Wilcox and Harris would love to keep serving in their nifty jobs. What matters instead is that Congress provided for them to serve their full terms, protected from a President’s desire to substitute his political allies.” As to the second side, Justice Kagan began by clarifying that the relevant interest is not that of “the Government,” but that of the President–specifically, “the President’s interest in firing Wilcox and Harris.” Further, she argued that the majority overstated the weight of this interest, considering that “[b]etween Humphrey’s and now, 14 different Presidents have lived with Congress’s restrictions on firing members of independent agencies.” She asked, “[C]an it really be said, after all this time, that the President has a crying need to discharge independent agency members right away?” Justice Kagan highlighted the subtext underlying the majority’s decision: “In valuing so highly–in an emergency posture–the President’s ability to fire without cause Wilcox and Harris and everyone like them, the majority all but declares Humphrey’s itself the emergency.”

Finally, Justice Kagan addressed the majority’s caveat regarding the Federal Reserve. As she noted, “the Federal Reserve’s independence rests on the same constitutional and analytic foundations as that of the NLRB, MSPB, FTC, FCC, and so on–which is to say it rests largely on Humphrey’s.” She noted that the majority offered only one citation in support of its attempt to distinguish the Federal Reserve, “an assumption made to humor a dissent” from a footnote. This dubious proposition, Justice Kagan argued, only further underscored the majority’s error: “Because one way of making new law on the emergency docket (the deprecation of Humphrey’s) turns out to require yet another (the creation of a bespoke Federal Reserve exception).”

While the full ramifications of this decision are yet to play out, the majority’s order does have an immediate impact on the functioning of the NLRB and MSPB. Board Members Wilcox and Harris will remain sidelined at least until the Court decides their respective cases on the merits. With their seats empty, both the NLRB and the MSPB will lack the required number of board members for a quorum, i.e., enough for a majority vote. And without a quorum, both agencies will not be able to issue final decisions in cases that are appealed to their respective boards. Both agencies will ostensibly be able to operate as usual with respect to all their other functions, albeit without leadership from the top. The NLRB’s Field Offices will continue to process cases, consistent with the Board’s February 1, 2025 Release on Authority for Continued Operations, and its Administrative Law Judges will continue to adjudicate these cases. Similarly, individuals will still be able to file appeals with the MSPB, to be adjudicated by the agency’s own Administrative Judges, though any rulings appealed will go into a black hole until the Board is again able to operate with a quorum.

The Supreme Court’s acquiescence to President Trump in this case is part of a broader project of concentrating power among corporate elites at the expense of workers, consumers, and the general public, undermining the institutions that stand in the way. But the fight is not over. Wilcox and Harris will continue to challenge their unlawful removals. And workers should continue to challenge unlawful employment practices through the NLRB and MSPB, lack of quorum at the Board level notwithstanding. If you believe that your federal, public, or private employer has violated your legal rights, please contact us at Bryan Schwartz Law, P.C.