Quick Hits

• The Supreme Court has granted a stay of orders from the District Court for the District of Columbia enjoining the president’s removal of NLRB member Gwynne Wilcox and MSPB member Cathy Harris pending the disposition of an appeal in the U.S. Court of Appeals for the District of Columbia Circuit.
• The stay, which will remain in effect until the Supreme Court rules on the issue, has the effect of preventing the NLRB from having the quorum needed to issue decisions for the foreseeable future.

The Supreme Court granted the government’s emergency application to stay two district court orders that had reinstated Wilcox and Harris as members of the NLRB and MSPB, respectively. The Supreme Court stated that the stay would remain in effect through the appeal in the U.S. Court of Appeals for the District of Columbia Circuit and until the Supreme Court rules on the issue, if a writ of certiorari is timely sought.

“Should certiorari be denied, this stay shall terminate automatically,” the Court stated. “In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.”

The stay ruling comes after an en banc decision by the U.S. Court of Appeals for the D.C. Circuit voided a decision by a three-judge D.C. Circuit panel and revived the two district court orders reinstating Wilcox and Harris. The Trump administration then sought emergency relief from the Supreme Court, and Chief Justice John Roberts granted a temporary stay.

By statute, the president is prohibited from removing NRLB and MSPB members except for cause. However, the Trump administration has argued that provisions limiting the president’s removal power are unconstitutional and infringe the president’s authority as the executive.

“The stay reflects our judgment that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power,” the Supreme Court stated. “But we do not ultimately decide in this posture whether the NLRB or MSPB falls within such a recognized exception; that question is better left for resolution after full briefing and argument.

“The stay also reflects our judgment that the Government faces 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,” the Court stated.

Justice Elena Kagan issued a dissenting opinion, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, arguing the Court should not “overrule or revise existing law” through an expedited emergency application “with little time, scant briefing, and no argument.”

The dissent pointed to the 1935 decision in Humphrey’s Executor v. United States, in which the Supreme Court upheld restrictions on the president’s authority to remove officers of certain types of independent agencies—in that case, a commissioner of the Federal Trade Commission.

A D.C. Circuit panel is currently considering the consolidated action of Wilcox and Harris challenging their removal. The court heard oral arguments in the case on May 16, 2025.

Next Steps

Though not final, the Supreme Court’s ruling backs President Trump’s near-unprecedented removal of members of independent federal agencies without cause. Notably, the Supreme Court’s stay will remain in effect until it decides the issue, as litigation remains ongoing.

In the meantime, the NLRB lacks the quorum required to issue decisions, hampering its ability to revise or reverse some of the employee-friendly decisions issued during the Biden administration. At least until the president appoints, and the U.S. Senate confirms, one or more new Board members, the Supreme Court’s stay seems to ensure that the NLRB will remain without a quorum for the foreseeable future.