President Trump’s first week of his second term in office was action-packed, as I posted last week. If you thought things would slow down for Week 2, you were mistaken.

Can he do that?

You may remember that, shortly after he took office in 2021, President Biden fired Peter Robb, who was General Counsel of the National Labor Relations Board for most of the first Trump Administration. Bloomberg Law reported on January 10, 2025, that Mr. Robb and his former deputy are now on President Trump’s NLRB transition team, which wasn’t good news for the Biden people.

On Monday, President Trump fired Jennifer Abruzzo, the Biden-appointed General Counsel for the NLRB. Not a surprise, given what President Biden did to Mr. Robb.

But President Trump kicked it up a notch and also fired NLRB Board Member Gwynne Wilcox (D). (Bam!) Ms. Wilcox was in the midst of her second term on the NLRB (set to expire in 2028) and had been named NLRB Chairman by President Biden. (When President Trump took office earlier this month, he named Marvin Kaplan, the only Republican on the Board, as Chairman.) The termination of Ms. Wilcox leaves the NLRB without a quorum and therefore without power to act. The only current member besides Chairman Kaplan is Member David Prouty (D).

Although the courts have supported the right of a President to have his own person as General Counsel at the NLRB, the President’s right to fire NLRB members (and Commissioners of the U.S. Equal Employment Opportunity Commission, which I’ll get to in a minute) is less clear. The National Labor Relations Act says that the President has the authority to remove members of the Board “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”

As far as I know, Ms. Wilcox has not been accused of “neglect of duty or malfeasance in office.”

Section 2000e-4 of Title VII pertains to the EEOC. The five members are appointed by the President to five-year terms, and no more than three commissioners can be from the same political party. The President gets to designate one Commissioner as “Chairman,” and President Trump did this last week when he named Andrea Lucas, the only Republican currently on the EEOC, as Chair. Title VII does not address whether, or under what circumstances, the President has the authority to terminate a Commissioner before the expiration of her term.

(Dear Readers: I don't have much experience with this particular section of Title VII, so if I've missed something, please feel free to let me know in the comments.)

On Monday of this week, President Trump fired Karla Gilbride, General Counsel for the EEOC, which was not surprising and probably his prerogative. (President Biden fired Sharon Fast Gustafson, Ms. Gilbride's predecessor, immediately after he took office.)

But President Trump also fired Charlotte Burrows (D), former Chair of the EEOC and a then-current Commissioner, and Commissioner Jocelyn Samuels (D). As with Ms. Wilcox, there were no indications of negligence or malfeasance in office, and both Ms. Burrows and Ms. Samuels were terminated well before their terms would have expired. Ms. Burrows’ term was scheduled to expire in 2028, and Ms. Samuels’ term was scheduled to expire in 2026.

After President Trump’s latest actions, there are only two remaining members of the EEOC: Chair Andrea Lucas (R) and Commissioner Kalpana Kotagal (D). In other words, no quorum on the EEOC either, and no power to act.

Ms. Wilcox, Ms. Burrows, and Ms. Samuels are all threatening legal action, and a 90-year-old decision from the U.S. Supreme Court may determine the outcome.

Blast from the past

William Humphrey was a member of the Federal Trade Commission, appointed in 1931 by President Herbert Hoover. In July 1933, after Franklin D. Roosevelt took office, FDR politely asked Mr. Humphrey to resign, saying “that the aims and purposes of the [Roosevelt] Administration with respect to the work of the [FTC] can be carried out most effectively with personnel of my own selection.” FDR reportedly took pains to assure Mr. Humphrey that it was no reflection on Mr. Humphrey personally.

Mr. Humphrey replied that he wanted to think it over. By the end of August, he had not made a decision. (Or at least, didn’t admit that his decision was “no.”) FDR followed up on August 31, 1933, and was a little more direct this time:

“You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the [FTC], and, frankly, I think it is best for the people of the country that I should have a full confidence.”

Mr. Humphrey failed to take these hints, and so FDR fired him in October 1933.

Wow, people in the 1930s were so much nicer than we are! No way would a modern president give the appointee of the opposition almost three months to resign before firing him.

Mr. Humphrey died about a year after FDR canned him, and his executor sued the federal government to recover the pay that he would have received as an FTC Commissioner between the date of his discharge and the date of his death.

The FTC Act is not identical to the NLRA, but it’s similar. It provides, “Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office.”

The case got to the U.S. Supreme Court, and the Court found in favor of Mr. Humphrey’s estate. Here’s a quick summary of what the Court said:

• Whether the President has authority to replace an “officer” before the end of his term set by Congress, depends on “the character of the office.”
• If the office is purely “executive” in nature, the President can fire at will.
• But if the office is “legislative” or “judicial” in nature, the President has no authority to remove the officer except as authorized in the statute. (The Court found that the FTC commissioner position fell into this category.)
• If the office falls somewhere between these extremes -- in other words, it has some executive functions but also some legislative/judicial functions -- future courts will have to decide whether the President can fire at will before the end of the individual's term of office.

Back to Trump

In my opinion, this doesn’t sound encouraging for President Trump’s efforts to remove NLRB members and EEOC commissioners before their terms expire, but it doesn't sound hopeless, either. According to an article by Sean Higgins published this week on the Competitive Enterprise Institute website, the argument in favor of the President’s view is that Humphrey’s Executor applies “only to federal agencies that do not exercise any executive power, such as federal rulemaking. The NLRB, by contrast, does have rulemaking authority and thus its members are not covered.” (The EEOC also has rulemaking authority.)

Do the NLRB and the EEOC exercise “executive” power? They do. But they also arguably exercise “legislative” and “judicial” power. So this could be one of those gray areas that the courts will have to address for the first time.

In other words, the issue may eventually find its way back to the Supreme Court, 90 years after Humphrey’s Executor, when Ms. Wilcox, Ms. Burrows, and Ms. Samuels sue the Trump Administration over their terminations. And by the time we get a ruling, Ms. Samuels' term may have expired anyway. Even if the President loses, he may not care if all he has to do is provide back pay with interest. Which raises another question. If Mr. Humphrey had still been alive in 1935 (his term was not set to expire until 1938), would he have been entitled to reinstatement? I would think so.

Oh! Oh! And what about the fact that Title VII doesn't seem to say anything about terminating an EEOC Commissioner before the expiration of the Commissioner's term? Does that mean the President is free to do what he wants, at least with the EEOC? Or does it mean that even Commissioners who are guilty of misconduct must be allowed to stay on until their terms expire? (Please note that I am not implying that Ms. Burrows or Ms. Samuels are guilty of, or even suspected of, misconduct.)

Thank you for letting me satisfy my inner nerd today!

And in other Week 2 news . . .

EEOC returning to traditional values? Andrea Lucas, the new Chair of the EEOC, issued a statement this week saying that she favors a return to protecting biological females in the workplace from discrimination and harassment. In the view of Chair Lucas, this includes not using Title VII to require employers to allow transgender women in women’s restrooms, locker rooms, and other private spaces. Ms. Lucas acknowledges that she does not have the authority to unilaterally revoke – for example – the EEOC’s Enforcement Guidance on Workplace Harassment, but her statement is a strong signal of the direction in which the agency is headed. She’s even removing the option for EEOC employees to include their preferred pronouns in their email signature blocks. 

Voluntary separation packages for federal employees. The Trump Administration has offered a sweet separation package to roughly 2 million federal employees. Employees who accept the package will be relieved of their duties immediately but will be paid their full salaries through the end of the government fiscal year (September 30, 2025). The last estimate I read said that 100,000 to 200,000 employees were expected to take him up on it.

USDOL immediately halts all enforcement of Lyndon Johnson's Executive Order 11246. Cara Crotty has the story here. Also, if you are an affirmative action employer (or were, until last week), you will not want to miss Cara’s February 13 webinar on the changes and what federal contractors ought to do. You can register here.

Military service members discharged for refusing to comply with the military’s COVID-19 vaccine mandate have been reinstated. I'm glad for them.

What on earth will be coming next week? We'll keep you posted!