Trump was right to tell Biden labor board appointee, ‘You’re fired!’

OPINION:

President Trump made a smart move when he fired National Labor Relations Board member Gwynne Wilcox, a Democratic-appointed holdover from the Biden administration. Ms. Wilcox issued onerous regulations that were struck down in court and decisions that violated the First Amendment because they called for restricting employees’ access to information about the consequences of unionization.

She is now suing President Trump in a legal gambit to return to power, reigniting a long-standing argument about “independent” agencies. The case started with oral arguments in a federal district court weeks ago.

Although the Obama-appointed judge ruled against Mr. Trump the day after the argument, the legal battle is only beginning. The judge acknowledged that the Supreme Court is expected to have the final say on the legality of Ms. Wilcox’s removal. In the end, Mr. Trump will likely win the argument, and the country will be better governed if he does.

The NLRB has five presidential appointees and wields immense power over most private-sector employees. The NLRB decides who can vote in union representation elections, adjudicates disputes between unions and employers, seeks injunctions in federal courts and punishes labor law violators. It can impose monopoly union representation on unwilling employees and compel unwilling employers to bargain with unions. It can even order shuttered businesses to reopen.

Although presidents appoint board members subject to Senate confirmation, the National Labor Relations Act says board members can be removed only for “neglect of duty or malfeasance in office.” This means the NLRB operates independently of the president and is overseen by no one. If the president disagrees with a board member’s decision, he is powerless to exert control over this executive branch official.

Ms. Wilcox’s position in her lawsuit illustrates the point. She was fired because Mr. Trump had lost faith in her ability to properly enforce the law. In his email to Ms. Wilcox explaining her termination, Mr. Trump wrote that she had issued decisions that “vastly exceeded the bounds of the National Labor Relations Act.”

Ms. Wilcox says Mr. Trump can do nothing about it and that she and other board members are entitled to wield executive power free from the president’s control for the entirety of their terms. Given that Ms. Wilcox’s term lasts until 2028, Mr. Trump would be saddled with her and her rogue actions for virtually the rest of his presidency. The president would not control one of his executive branch agencies, making the NLRB effectively part of a fourth branch of government.

This violates Article 2 of the Constitution, which vests in the president all executive power. The Supreme Court has held since the 1920s that this power includes controlling and removing subordinate executive officials.

In her lawsuit, Ms. Wilcox claims the Supreme Court’s 1935 decision in Humphrey’s Executor exempts her and other members of federal boards from the president’s executive authority. Not true. In Humphrey’s Executor, the Supreme Court upheld removal protections for the Federal Trade Commission because its primary function was preparing reports for Congress.

The NLRB is nothing like the 1935 FTC because it exercises substantial executive powers that Article 2 vests solely in the president. Unlike the 1935 FTC, the board is not a body of technical experts balanced along partisan lines. Rather, the NLRB is a highly partisan body of policymakers.

Humphrey’s Executor does not apply to executive branch officials who wield substantial executive policymaking powers. If lower courts erroneously conclude otherwise, the Supreme Court should cabin or overrule Humphrey’s Executor. The founders did not fight and die in a war so we could be ruled by unelected bureaucrats free from political accountability.

Under Article 2 of the Constitution, Mr. Trump has the sole duty and authority to ensure the laws are faithfully executed. If Mr. Trump lost faith in Ms. Wilcox or never had any to begin with, he was well within his right to remove her from the board.

• Aaron Solem is a staff lawyer at the National Right to Work Legal Defense Foundation. He has represented workers in dozens of cases before the National Labor Relations Board and challenged NLRB actions in federal courts.