Employment & Labor Insider

The U.S. Supreme Court has brought an end to the long-running termination challenge of Gwynne Wilcox, former Member of the National Labor Relations Board.

Ms. Wilcox, a Democrat and Biden appointee, sued after she was terminated by President Trump shortly after he took office in January 2025.

This past Monday, the Supreme Court denied Ms. Wilcox’s petition for writ of certiorari (scroll to the top of page 3 at the link), which ended all legal recourse that she had. The Court gave no opinion accompanying its action, which is typical for denials of certiorari.

The denial was not surprising, given the Court’s June 2026 decision involving comparable removal protections under the Federal Trade Commission Act.      

The Trump v. Slaughter decision and Humphrey’s Executor 

Rebecca Slaughter was a Commissioner on the Federal Trade Commission. Like Ms. Wilcox, she was terminated by President Trump after he took office, and she filed suit. In her lawsuit, Ms. Slaughter cited statutory removal protections for heads of “independent” federal commissions and boards, which had been upheld to some degree in a 1935 Supreme Court decision, Humphrey’s Executor.

In Humphrey’s Executor, the Court generally held that Congress could, without violating Article II of the U.S. Constitution, enact “for-cause” removal protections for government officials on multi-member boards and for heads of “independent” agencies, as long as the boards and agencies served only “adjudicatory” or “legislative” functions and did not exercise executive power.

In June 2026, the current Supreme Court overruled Humphrey’s Executor in Ms. Slaughter’s case, which spelled trouble for Ms. Wilcox’s case.

In its Slaughter decision, Chief Justice John Roberts, writing for the majority, said, “The FTC’s for-cause removal provision violates the separation of powers.” Finding the modern FTC role distinguishable from the FTC role in the 1930s, he noted, “The FTC unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested. It follows, then, that Slaughter served as the president’s subordinate at the FTC – and that the president was entitled to cut her tenure short.”

Ms. Wilcox fails to sidestep Slaughter

The Slaughter decision did not look good for the many other “independent” federal board and commission officials who were terminated during their terms by President Trump, including the NLRB’s Wilcox.

But Ms. Wilcox and her team did not wilt. Her attorneys tried to distinguish the NLRB structure and powers from those of the FTC, and also argued that, if any Board powers unconstitutionally intruded into executive branch powers, the remedy should be for the Court to sever the unconstitutional powers rather than invalidating the removal protections for NLRB Members.

The Court’s denial of certiorari indicates that those arguments failed. The stubborn fact here was that for many years the Board has functioned as an “executive” agency, with multiple rounds of administrative rulemaking.

It should be noted that the Slaughter reasoning does not apply to all federal board and commission appointments. From the case of Federal Reserve Board Governor Lisa Cook, we know that the Supreme Court sees the Federal Reserve Board as “different,” given its structure and history that the FTC and the NLRB do not share.

Significance of Slaughter/Wilcox

As we have reported, since the Supreme Court decision in Slaughter, other federal officials who sued after being terminated by President Trump have come to grips with the new reality. The history of Ms. Wilcox’s now-ended legal fight for reinstatement to the Board (discussed here, here, here, and here) has been a long “back and forth.”

With the Slaughter decision and now the end of the Wilcox litigation, the Supreme Court has drawn a relatively clear line limiting the ability of Congress to infringe on powers that are reserved to the executive branch under Article II of the Constitution.

The decision brings more direct legal control, responsibility, and political accountability to the executive branch for administrative actions at the federal level. Future presidents of both parties will be empowered to terminate current board and commission officials “at will” and seek to replace them with new appointees who are more palatable to the president then in office.

Still, the executive power is not wholly without check, and there is some constitutional balance: the Senate generally has the power to approve or disapprove the nominations to these board and commission seats.