Supreme Court Halts Reinstatement of NLRB & MSPB Members

On May 22, 2025, the U.S. Supreme Court quietly dropped a short order that packed a very loud punch:
it halted the reinstatement of two Democratic appointees, Gwynne Wilcox of the National Labor
Relations Board (NLRB) and Cathy Harris of the Merit Systems Protection Board (MSPB). In plain language,
the Court told the lower courts, “Pause. The President’s firings stand for now.”

That one-page stay order doesn’t decide the whole case, but it does send a strong signal about
where the justices may be heading on a huge constitutional question: How much power does
the President have to fire members of so-called “independent” federal agencies? And because the
agencies at issue regulate workplaces and federal employees nationwide, the ruling has very real
consequences for unions, employers, and government workers.

Who Are Wilcox and Harris, and Why Do They Matter?

To understand why this is a big deal, it helps to know what these two boards do:

• NLRB (National Labor Relations Board). This agency enforces federal labor law in the
  private sectorthings like union organizing rights, unfair labor practices, and collective
  bargaining disputes. When the Board doesn’t have a quorum (at least three members), it can’t
  issue decisions, which effectively freezes a big chunk of federal labor law.
• MSPB (Merit Systems Protection Board). This board protects federal civil servants from
  unfair personnel actions and ensures federal employment is based on merit, not politics. Without
  a functioning MSPB, thousands of appeals from federal employees can sit in limbo.

Gwynne Wilcox, a Democratic labor lawyer, served as an NLRB member. Cathy Harris served on the MSPB.
Both had statutory “for-cause” protectionsCongress specified they could only be removed for reasons
like neglect of duty or malfeasance, not just because the President didn’t like their policy views.

Former President Donald Trump removed both women without stating cause. They sued, arguing that
the removal violated the statutes that protect NLRB and MSPB members from being fired at will.
Federal district courts in Washington, D.C. agreed and ordered that they be allowed to continue
serving in their roles while the litigation played out.

How the Cases Reached the Supreme Court

After the district courts ordered Wilcox and Harris reinstated, the federal government asked the
D.C. Circuit to stay (pause) those orders. The appeals court initially granted a temporary stay
and later allowed the government to keep Wilcox off the NLRB, leaving the Board without a quorum
once again.

At the same time, the Justice Department went to the Supreme Court with an emergency application,
arguing that the orders keeping Wilcox and Harris in office were “untenable” because they limited
the President’s constitutional authority to remove executive officers.

Chief Justice John Roberts first issued an administrative stay on April 9, 2025basically a
short-term freeze to give the Court time to consider the request.
Then, on May 22, the full Court granted the government’s stay application, halting the reinstatement
orders during the appeal and potentially through Supreme Court review, if the case comes back on
full merits.

The Supreme Court’s Stay Order: Tiny Document, Big Implications

The stay order in Trump v. Wilcox is short, but it says a lot between the lines. The majority
explained that the stay reflects its judgment that the government is likely to show that both the
NLRB and MSPB “exercise considerable executive power.”

That phrase matters. In recent years, the Court’s conservative majority has repeatedly emphasized
that when officials exercise “executive power,” the President must generally have the authority
to remove them at will, with only narrow exceptions. This trend showed up in cases about the
Public Company Accounting Oversight Board and the Consumer Financial Protection Bureau, and the
Wilcox/Harris dispute looks like the next chapter in that story.

The order also contained an eyebrow-raising footnote: The Court said its ruling does not speak
to the constitutionality of for-cause protections for Federal Reserve Board and Open Market
Committee members. In other words: “We might blow up for-cause protections for these agencies,
but don’t read this as an attack on the Fed… yet.”

Justice Ketanji Brown Jackson, joined in substance by other liberal justices in public commentary
and dissents elsewhere, has emphasized that this kind of move risks quietly gutting
Humphrey’s Executor v. United States, the 1935 decision that upheld Congress’s power to limit
presidential removal of independent commissioners. From her vantage point, the majority is treating
Humphrey’s not as precedent, but as a problem to be worked around.

What It Means for the NLRB: A Board Without a Voice

For employers, unions, and workers, the most immediate effect is practical, not theoretical:
the NLRB is once again operating without a quorum. That means:

• The Board cannot issue new decisions on contested labor law questions.
• Pending cases, including union election disputes and unfair labor practice appeals, may stall.
• Regional offices can still investigate and prosecute, but the “final say” at the Board level
  is effectively on hold.

Commentators tracking NLRB activity note that this kind of paralysis can create major uncertainty.
Employers might not know whether certain handbook rules, social media policies, or bargaining
strategies will pass legal muster, and unions may struggle to predict how aggressively the law
will be enforced in ongoing campaigns.

A simple way to think about it: the NLRB is like a referee who can still blow the whistle, but
often can’t finalize the score. For businesses that like predictability, and workers who rely
on timely enforcement of rights, that’s not a great game plan.

What It Means for the MSPB: Federal Employees in Limbo

The MSPB’s situation is just as important, though it gets less media attention. For years, the
MSPB has battled backlogs, with appeals from federal employees sometimes sitting for months or
longer without resolution.

By siding with the government and allowing Harris’s removal to stand (at least for now), the
Supreme Court’s stay adds to the instability. A less stable MSPB means:

• Federal employees challenging removals or disciplinary actions may wait longer for decisions.
• Agencies may feel less constrained in pushing aggressive personnel policies.
• The overall message to career civil servants can feel more political and less “merit-based.”

For agencies that want to move quickly on restructuring or discipline, that could be attractive.
For employees who believed their jobs were insulated from partisan tides, it is deeply unsettling.

The Constitutional Fight: Humphrey’s Executor in the Crosshairs

The legal fight at the heart of this dispute is about presidential removal power. For almost
90 years, Humphrey’s Executor has stood for the idea that Congress can create “independent” multi-member
commissionslike the NLRBand shield commissioners from at-will firing by the President, so long as
they are performing quasi-legislative or quasi-judicial functions.

The Trump administration’s position flips that script: these boards, it argues, wield substantial
executive power, and under Article II the President must be able to remove their members without
cause, absent a very narrow exception. The Supreme Court’s stay suggests that a majority of the
justices find that argument at least plausible enough to justify pausing the lower-court reinstatement orders.

Critics see this as part of a broader push toward a “unitary executive,” where the President controls
virtually all federal officers who implement federal law. Supporters say this is about democratic
accountability: if the President is responsible for executing the laws, the public should be able to
hold someone accountable at the ballot box for agency policy.

Reactions: Alarm Bells and Quiet Cheers

Reactions to the Supreme Court’s move have been sharply divided:

• Worker advocates and democracy groups warn that the decision “paves the way to autocracy,”
  arguing that letting Presidents freely fire independent officials erodes checks and balances and
  makes it easier to politicize labor and civil service protections.
• Business groups and some conservative commentators see the stay as a welcome correction.
  They argue that agencies like the NLRB have swung wildly with partisan control and that stronger
  presidential oversight may rein in aggressive regulation and litigation.
• HR professionals and in-house counsel are mostly focused on managing risk. Their main concerns:
  “What does this mean for our pending NLRB charges?” and “How should we plan for MSPB appeals if the
  legal framework keeps shifting?”

Meanwhile, the D.C. Circuit has now backed the President’s removal authority in a recent decision,
agreeing that for-cause restrictions on NLRB and MSPB members violate the Constitutiona ruling that
reinforces the Supreme Court’s direction of travel and sets up an even higher-stakes merits fight ahead.

What Employers and Workers Should Do Right Now

For Private-Sector Employers

Even with the NLRB in a weakened state, employers shouldn’t treat this as a free pass. Regional
offices can still investigate, issue complaints, and seek settlements. Once the Board regains a
quorumeither through new appointments or after the courts resolve this messthose dormant cases
can roar back to life.

Practical steps for employers include:

• Reviewing handbooks and social media policies with labor counsel.
• Documenting discipline and performance decisions carefully, especially where union activity is present.
• Preparing for multiple possible legal “regimes,” depending on how the NLRB ultimately is composed.

For Unions and Workers

Unions may need to get more creative. With the Board slowed down, organizing campaigns may rely
more on public pressure, community alliances, and employer negotiations rather than quick legal
victories in Washington. Workers filing unfair labor practice charges should expect delays and
work closely with union reps or attorneys to keep their cases alive.

In short, the law is in flux, but rights haven’t vanished. They’re just harder to enforce quickly.

For Federal Employees

Federal employees navigating MSPB appeals should brace for ambiguity. Laws and regulations still
apply, but the leadership and long-term structure of the MSPB may change. That makes early advice
from experienced federal employment counsel more important than ever, especially in high-stakes
removal or whistleblower cases.

Looking Ahead: Beyond Wilcox and Harris

The Supreme Court’s stay in the Wilcox and Harris cases is not the final word. The D.C. Circuit’s
recent ruling in favor of the President’s removal power, and the expectation that the justices may
soon take up a broader case about independent agencies and presidential control, mean the real
showdown is still coming.

Still, the writing on the wall is hard to miss. Between this stay, the Court’s earlier decisions
limiting independence of other agencies, and the D.C. Circuit’s December 2025 opinion, the modern
Court appears increasingly skeptical that Congress can insulate powerful regulators from political
accountability at the top.

For now, the headline is simple:
Wilcox and Harris are out, the NLRB is short-handed, the MSPB is unsettled, and presidential
control over “independent” agencies has never been a hotter issue.

Practical Experiences and Takeaways from the Front Lines

Legal doctrine is fascinating (at least for the five people at the party who took Constitutional
Law), but the real question for most people is: What does this feel like on the ground? Here are
some lived-in, practical experiences and patterns that mirror what employers, unions, and public
sector workers are dealing with in the wake of the Supreme Court’s decision to halt reinstatement
of NLRB and MSPB members.

1. Living with Legal Whiplash

Many HR departments and in-house legal teams describe the current NLRB landscape as “legal
whiplash.” One year, a board majority is reading the law broadly in favor of workers; a few
years later, a different majority is narrowing protections. Layer on top the possibility that
a President can fire board members mid-termand that the Supreme Court may bless that powerand
the result is a constant sense of, “What’s the rule this quarter?”

The stay on Wilcox’s reinstatement reinforces that feeling. Companies that carefully updated
policies to comply with an NLRB trend may now hesitate, thinking, “If a new President can just
remove board members and flip direction again, should we wait and see?” That kind of strategic
hesitation can lead to inconsistent practices across locations and business units.

2. Union Campaigns in a Holding Pattern

On the worker side, organizers report that the lack of a stable, fully functioning NLRB can
blunt momentum. Workers may be fired or disciplined during organizing drives, and while charges
can still be filed, everyone knows that final Board decisions might be months or years away.
That can sap morale: “Why stick my neck out if the Board is in limbo and the political winds
could shift again before my case is resolved?”

Experienced organizers respond by reframing expectations: the law is one tool, not the only one.
They lean more heavily on collective actions, media campaigns, and direct negotiations with
management. The Supreme Court’s stay doesn’t end labor rights, but it does force campaigns to
calibrate around a slower, more unpredictable enforcement environment.

3. Federal Employees and the “Neutral Umpire” Problem

For federal employees, the MSPB is supposed to be the neutral umpire: the place you go when you
believe your removal, suspension, or demotion was unfair or politically motivated. When staffing
at the Board is unsettled, and when the law on removal protections for Board members themselves
is up for grabs, it can feel like the umpire’s own job is in question.

Employees who have spent decades in public service often chose those careers precisely because
they were supposed to be buffered from partisan swings. Hearing that the President may have more
power to remove the very people who safeguard merit-based protections lands like a warning. Some
long-time civil servants respond by documenting everything and seeking legal advice earlier in a
dispute. Others quietly consider leaving for the private sector, where at least the rules of the
game feel clearer, even if less protective.

4. Board Vacancies as a Political Strategy

Another experience that labor and employment professionals recognize is the use of vacancies as
a political tool. Leaving seats unfilledor removing members and then letting confirmations drag
oncan be as powerful as changing the law. A non-quorate NLRB doesn’t have to reverse precedent
to change outcomes; it can simply stop issuing decisions.

The Supreme Court’s decision to halt reinstatement of Wilcox and Harris intersects with this
dynamic. By siding with the government on the stay, the Court effectively blesses, at least
temporarily, a strategy where the President can remove members, fight about it in court, and
leave critical agencies hamstrung in the meantime. Employers may secretly appreciate the pause;
workers and unions feel the costs more directly, in delayed remedies and unresolved cases.

5. Planning in the Fog: How Savvy Organizations Adapt

Organizations that navigate this turbulence best tend to treat legal instability as a constant,
not an exception. They:

• Run scenario plans: “What if the Supreme Court ultimately expands presidential removal power?”
• Build compliance programs that don’t depend on the most aggressive or most employer-friendly reading of the law.
• Invest in training managers to handle union activity and employee complaints in a way that would look reasonable under any Board composition.

On the worker side, unions and advocacy groups do something similar: they assume slower, less
predictable administrative enforcement and double down on organizing, public campaigns, and
coalition building. In that sense, the Supreme Court’s stay in the Wilcox and Harris cases is
less a radical break and more an intensification of a trend: labor and employment battles are
increasingly fought in politics and the court of public opinion, not just inside agency conference rooms.

The bottom line experience from all sidesemployer, worker, and public servantis that the
Supreme Court’s move to halt reinstatement of NLRB and MSPB members doesn’t merely tweak an
abstract doctrine. It changes how people plan, how they take risks, and how safe they feel
relying on “independent” institutions that suddenly look much more dependent on who sits in
the Oval Office.