Fired NLRB member Gwynne Wilcox’s legal bid to rejoin the board carries an unexpected risk for labor law enforcement, as her success could give a big boost to employers that have challenged the agency’s constitutionality.

That Catch-22 dynamic stems from the potential that a court order reinstating Wilcox would help companies demonstrate that National Labor Relations Board members’ removal protections had an actual impact on employers. The agency asserts that employers can’t win constitutional challenges to board members’ removal protections unless they show what’s known as causal harm.

“Wilcox’s reinstatement would cut against the agency’s argument that employers are unable to demonstrate causal harm,” said David Kelly, a management-side labor lawyer at Jackson Lewis PC.

That sets up the chance that if Wilcox returns to the board and restores its three-member quorum, employers will have an easier time getting courts to halt NLRB cases through constitutional lawsuits. Amazon.com Inc., SpaceX, and other employers have brought lawsuits arguing that board members have unconstitutional protections against removal.

The potential that Wilcox’s success could have unintended negative consequences for the NLRB shows the scope of disruption that the Trump administration has caused for the agency.

President Donald Trump‘s Jan. 27 axing of Wilcox robbed the board of the quorum necessary for it to issue rulings. The administration subsequently stopped defending the constitutionality of the agency members’ shields against being fired.

Early Legal Test

Wilcox’s counsel is set to appear Wednesday at a hearing in the US District Court for the District of Columbia on her request for a speedy ruling in her lawsuit .

She argues that Trump violated the National Labor Relations Act’s provision limiting his authority to fire board members to instances of “neglect of duty or malfeasance in office,” a protection that is valid under the US Supreme Court’s 1935 decision in Humphrey’s Executor v. US .

The Trump administration has filed a cross-motion for summary judgment in the case. The exception to the president’s power to fire agency board members with quasi-legislative or quasi-judicial power recognized in Humphrey’s Executor doesn’t apply to Wilcox because NLRB members exercise executive authority, according to the administration.

Wednesday’s hearing will be a significant early test of whether Wilcox’s case will advance quickly to the US Supreme Court to decide whether to uphold Humphrey’s Executor and the constitutionality of NLRB members’ removal protections.

Constitutional Litigation

Debate over the NLRA’s shields for board members has been percolating for over a year thanks to a barrage of constitutional lawsuits that employers have brought against the NLRB.

While those lawsuits have mostly failed outside of federal courts in Texas, Trump-appointed judges there have halted unfair labor practice cases—including a dispute involving SpaceX—while litigation on the merits of the constitutional arguments proceeds.

The NLRB has stopped arguing that the members’ job shields are constitutional, consistent with the Trump administration’s about face on that issue in a case involving the Federal Trade Commission.

But the agency has maintained its argument that companies’ challenges to firing safeguards fail because they can’t show causal harm as required by the Supreme Court’s 2021 decision in Collins v. Yellen .

Courts interpreting Collins use a three-part test involving evidence that the president wanted to remove an official with a statutory safeguard, an inability to do so because of those shields, and a nexus between that inability and the challenger’s case causing prejudice, according to the agency.

Federal appeals courts in the Fifth , Sixth , and Tenth circuits have applied that causal harm requirement in removal protection cases outside of the NLRB context. Last fall, the Sixth Circuit cited its precedent applying Collins to reject an employer’s bid for an immediate order freezing an NLRB case.

Whither Wilcox?

In Collins , the Supreme Court offered hypothetical scenarios for what it would take for the Federal Housing Finance Agency director’s unconstitutional removal protection to cause harm. One of the examples has similarities to the type of court order that would reinstate Wilcox in light of the NLRA’s for-cause protections.

“Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have ‘cause’ for removal,” the high court said.

In that situation, the court continued, “the statutory provision would clearly cause harm.”

The potential for an order reinstating Wilcox to provide companies with the necessary causal harm to help constitutional challenges against the agency was discussed during a panel at an American Bar Association conference last week.

AFL-CIO lawyer Maneesh Sharma said during that discussion that any advantage a challenger might gain to show causal harm from Wilcox’s reinstatement would be temporary. Such a benefit would go away with a loss on the merits of the constitutionality of NLRB members’ removal protections, he said.

The NLRB declined to comment. Wilcox’s attorneys at Gupta Wessler LLP didn’t immediately provide comment.

The case is Wilcox v. Trump , D.D.C., No. 25-00334, hearing scheduled 3/5/25.