Why the Firing of Gwynne Wilcox Could Be an Inflection Point for the NLRB—and Administrative Government

Earlier this week, President Donald Trump fired Gwynne Wilcox, one of the three remaining members of the National Labor Relations Board. The move surprised some observers because Wilcox, like all Board members, ostensibly enjoyed statutory protection from removal. Under the National Labor Relations Act, a Board member can be removed only for “malfeasance” or “neglect of duty.” So the president’s decision seemed like a direct challenge to the statute’s provisions.
More broadly, however, the decision also raised questions about the status of so-called “independent” federal agencies. Created in the Progressive era, independent agencies like the Board were supposed to hand policymaking responsibility to disinterested experts. But more recently, this faith in expertise has faded. Agencies have come under fire both for their lack of accountability and for their failure to deliver results. Politicians, academics, and even judges have called for a return to the classical model of administration, which is driven by elected officials. Wilcox’s termination could signal a return to that model: a step back from administrative government and a return to electoral accountability.
A Product of Progressive Faith
Like many independent agencies, the Board traces its roots to Progressive-era ideas about government and policymaking. At the turn of the last century, intellectuals and social reformers came to believe that the federal government was outmoded. The government was founded on a division powers: Congress passed laws, the president enforced the laws, and courts resolved disputes about what the laws meant. That system both diffused power across the government and made sure that the people wielding power were accountable to the electorate. But by the 1880s, things seemed to be changing. The Industrial Revolution had birthed modern capitalism and created a host of complex new societal and economic challenges. Urbanization, trade, and technology had seemingly changed the face of society. Problems were more complex and faster-paced. What was needed was a more responsive government—one stocked with flexible, nonpartisan experts.
That impulse produced a wave of new administrative agencies. From the beginning, these agencies were designed to be expert policymakers. They were to be staffed by dedicated civil servants with deep knowledge in science and economics. They would be both more informed and more flexible than generalist legislators, who could act only through deliberation and consensus. Rather than debate every problem, independent agencies would be able to act precisely and decisively. They represented a new and—in the minds of progressives—better way to do government.
But even progressives recognized the risk of partisan infection. These new agencies had been given wide discretion. And if exposed to political pressures, they could easily become the tools of partisan operatives. So progressives also tried to insulate the agencies from politics. They gave agency leaders staggered terms of service and protected them from removal except for cause. These protections ensured that agency leadership wouldn’t turn over immediately with each new presidential administration. The president would still be able to influence the agencies through periodic appointments. But between appointments, agencies would have space to develop policy in line with their expertise, not with politics.
Return of the Classical Model
That model, however, never truly reflected the reality of administrative government. As early as the 1930s, the public had become increasingly concerned with biased agency decisionmaking. And that concern only grew over time. Despite their statutory insulation, independent agencies nearly always reflected the priorities of the current administration. Removal protections didn’t stop agencies from advancing the president’s policy agenda. Agencies like the SEC, FTC, and Board tended to shift back and forth between administrations.
Indeed, the Board was perhaps the most dramatic example. The Board mostly develops labor policy through an adjudicative model: it sits in three-member panels and issues quasi-judicial decisions. Theoretically, the Board’s independence allows it to make these decisions without political influence. But in fact, studies have shown that the most predictive factor in any Board case is the makeup of the panel: a Democratic majority is almost fifty points more likely to rule for a union than a Republican one. And because partisan balance affects Board decisions so dramatically, the Board is especially prone to change course with the political winds. One recent study showed that, during the Obama administration, the Board overruled so many of its own decisions that it had effectively abandoned a combined 4,000 years’ worth of precedent.
That kind of shift has helped change the public perception of administrative government. In recent decades, scholars and courts have become increasingly skeptical of the post-New Deal model. Witnessing the policy gyrations in real time, many have wondered what the country really gained by insulating agencies from presidential control. While independent agencies promised to bring about a new era of disinterested decisionmaking, they didn’t actually seem to base their decisions on scientific or economic expertise. Instead, they seemed just as politically motivated as their non-independent counterparts. The only difference was that they were less accountable. When the Department of Labor makes a bad decision, people can at least blame that decision on the president, and they can factor that into their electoral choice when he or a member of his party stands for election within four years. But when the Board makes a bad decision, whom can the public blame? No one votes for Board members. And technically, the members don’t even have to answer to the president.
Focus on the Board
Some have seen that accountability gap not just as a practical problem, but as a constitutional one. Article II vests all executive power in the president. But the president can’t exercise that power himself; he has to rely on his subordinates. To do that, he has to be able to control those subordinates, in part through the threat of removal. So in theory, removal protections clash with constitutional design.
Independent agencies have mostly avoided that problem by pointing to Humphrey’s Executor v. FTC. Decided in 1935, Humphrey’s Executor dealt with removal protections for the FTC’s commissioners. The Supreme Court recognized the tension between removal protections and Article II, which on its face assigns all executive power to the president. But even so, it allowed some limits on removal for multi-member independent agencies. Those kinds of agencies, the Court said, didn’t perform traditional executive functions; they acted instead as aids to the judiciary and Congress. So it was okay to give them some insulation from presidential control.
But that view has become increasingly untenable. In more recent decades, the Supreme Court has begun to pare back removal protections. In Free Enterprise Fund v. PCAOB, it struck down a double-layered system of removal protections for inferior executive officers. In Seila Law LLC v. CFPB, it struck down removal protections for the sole head of an otherwise independent agency. And in United States v. Arthrex, it seemed to reject the very concept of quasi-legislative or quasi-judicial agencies. As Chief Justice Roberts wrote, “The activities of executive officers may take ‘legislative’ or ‘judicial’ forms, but they are exercises of—indeed, under our constitutional structure, they must be exercises of—the ‘executive Power,’ for which the President is ultimately responsible.”
That approach harkened back to the classical model. It emphasized accountability, lines of authority, and separation of powers. It also seemed to call into question the basic structure of independent agencies, including the Board. The Board has come under increasing scrutiny, including a wave of lawsuits challenging its basic setup. The challengers have argued that Article II gives the president both the responsibility and the authority to execute federal law. And he can’t do that if he can’t even control executive officers. So like all other officers, the Board members should have to answer to the president. Their insulation, these challengers argue, is unconstitutional.
A Crucible for Administrative Government
That argument has now reached a new inflection point with Wilcox’s termination. By firing her, the president effectively sided with the challengers. In a letter to Congress, he explained that Article II gives him the sole responsibility to run the executive branch, and that Congress may not interfere with that responsibility by interposing limits on removal. Humphrey’s Executor notwithstanding, he argued, the Board’s members are removable at will.
That move is likely to accelerate a decision on the Board’s status. To this point, some challengers have stumbled on a supposed lack of harm. Some courts have said that private people can’t challenge removal protections because they can’t show that the protections made a difference in any one case. But that hurdle isn’t present in Wilcox’s case. Wilcox has been officially removed, and she has signaled that she’s willing to litigate. The dispute has been teed up, and there is no obvious procedural hurdle to a decision on the merits.
What that decision will be remains to be seen. Though the Progressive-era faith in expertise has waned, it is not completely gone. The modern economy is even more complicated than it was in the early 19th century, and the modern Congress is at least as slow as its New Deal counterpart. So the country may still need some form of administrative government. The question, however, is not whether we need administrative government at all. It is whether administrative government should be accountable. Just as independence isn’t synonymous with nonpartisanship, expertise isn’t antithetical to accountability.
Perhaps we can have both: agencies that are capable of facing modern problems while also answering to elected officials. That was the framers’ vision for the classical model. For more than a century, it served the country well. Maybe it could again.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].