Late on January 27, 2025, a National Labor Relations Board member named Gwynne Wilcox got an email from a White House staffer telling her she was fired, effective immediately. No hearing. No stated cause. Her term ran to August 2028. The National Labor Relations Act says a Board member “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” None of that happened. What happened instead is that a labor enforcement apparatus covering the entire private sector stopped working, by design, because of how few people it takes to make it stop.
The Quorum Is the Whole Point
The NLRB has five seats, but the Act requires three members present to do anything at all, per Section 3(b), and the Supreme Court made that requirement absolute in New Process Steel v. NLRB (2010), tossing out roughly 600 decisions a two-member Board had issued over 27 months on the theory that two was close enough. It was not. So when Wilcox’s seat emptied, the Board had two members left. Below quorum, the agency cannot certify a union election, cannot rule on an unfair labor practice charge, cannot seek a 10(j) injunction against an employer firing organizers mid-campaign. It can receive filings. It cannot decide them.
This is worth sitting with, because it means removing one person, out of five, on a board that oversees private-sector labor relations for the entire country, is functionally the same as abolishing the agency for as long as the seat stays empty. Congress built in that fragility assuming no president would exploit it. That assumption did not survive contact with 2025.
The Ninety Year Old Fence Comes Down
Wilcox sued. In March 2025, Judge Beryl Howell reinstated her, writing that the removal was “blatantly illegal,” leaning on Humphrey’s Executor v. United States (1935), the case letting Congress insulate agency heads like FTC and NLRB members from at will removal for nine decades. The government appealed. In April 2025, the Supreme Court granted an emergency stay letting the firing stand, without yet deciding the underlying question, but noting the NLRB wields “considerable executive power,” a phrase that told you exactly where this was going more than a year before the Court said so on the merits.
By December 2025, the D.C. Circuit obliged, ruling that NLRB removal protections violate Article II, consolidated with a companion case over the Merit Systems Protection Board. Then in June 2026, the Court delivered Trump v. Slaughter, tossing Humphrey’s Executor out entirely and holding that anyone who exercises executive power (adjudicating cases, writing binding rules, suing on the government’s behalf) has to be removable at the President’s will. The FTC lost its removal protections that day. The MSPB’s cert petition was denied the next. And this September, the Solicitor General filed a brief telling the Court that Wilcox’s case is moot for the same reason, since the NLRB does the identical three things (adjudicates, rules, sues) that got the FTC stripped of its tenure protections. DOJ wants cert denied outright, or granted and summarily affirmed, because there is nothing left to argue.
The Federal Reserve Gets to Keep Its Fence
Here is the detail that belongs in the lede of somebody’s dissertation someday. On the same day the Court decided Slaughter, a different lineup of justices decided Trump v. Cook, holding that the Federal Reserve’s Board of Governors is not subject to the same logic, and its removal protections survive. Same Court, same day, same constitutional text, opposite outcome, because the majority drew a line around the one institution whose independence bond markets actually price. The NLRB, which decides whether a shop steward gets reinstated, did not make the cut. The body that sets interest rates did. If “executive power” were a neutral legal category rather than a permission slip issued selectively, you would expect it to catch both agencies or neither. It caught the one nobody holding a bond portfolio would tolerate touching.
Every Future President Now Owns a Switch
Strip away the doctrinal packaging and what Slaughter hands the next several administrations, of either party, is a standing option. Dislike how an independent board is ruling, and you no longer need Congress to restructure it. Fire one member below quorum and the agency goes dark until you nominate a replacement, on your own schedule. The NLRB is uniquely exposed here because its quorum floor is so low relative to its seat count, three of five, that a single vacancy (whether from resignation, expiration, or a late-night email) can freeze it entirely. The FTC carries the same removal exposure now but a sturdier quorum structure, so it does not fail as cleanly. The NLRB does.
Wilcox’s case will likely end quietly, denied or summarily affirmed, exactly as DOJ has asked, because the fight over the underlying constitutional question is already over. What is not over is the operational fact this litigation exposed almost as an aside. An agency built to arbitrate between employers and organized labor can be switched off by any president willing to fire one person and wait. Nobody had to rewrite the National Labor Relations Act to accomplish that. They just had to win a case about somebody else’s agency.
Sources: National Labor Relations Act, 29 U.S.C. § 153; New Process Steel v. NLRB, 560 U.S. 674 (2010); Supreme Court emergency stay order, April 9, 2025; Solicitor General brief, Wilcox v. Trump (September 2026).
