Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law.com in “Supreme Court Will Turn Its Attention to Presidential Authority Over Agencies,” by Steve Lash. (Read the full version – subscription required.)

Following is an excerpt:

With Donald Trump’s return to the presidency, the U.S. Supreme Court’s attention will shift from its June decision that the nation’s chief executive has immunity from prosecution for his official acts to whether presidents have the authority to fire appointed members of independent federal agencies. The termination issue has been teed up by Trump’s firing without cause of National Labor Relations Board Member Gwynne Wilcox in January.

Wilcox has sued Trump in the U.S. District Court in Washington, D.C., alleging she was fired in violation of the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States. In that ruling, the high court held that a president must have cause to fire a member of a federal agency engaged in quasi-legislative and -judicial activities, such as the adoption of regulations and the adjudication of their alleged violation. …

Supreme Court watchers have been saying for many months that a majority of the justices appear poised to either limit or overturn the restrictions Humphrey’s Executor has placed on the president’s authority to fire members of independent federal agencies. …

Steve Swirsky, co-chair of Epstein Becker Green’s labor-management relations practice group, said the Trump administration could go small and argue that the Humprey’s Executor precedent doesn’t apply in Wilcox’s situation because the NLRB is structured differently than the FTC, the agency at issue in that long-ago decision.

The justices would likely “be receptive to the administration’s arguments about Humphrey’s either not being good law still or it being distinguishable on these facts,” Swirsky said. “I do expect that they [would] argue that Humphrey’s is not long good law, or at minimum, that if it stands, that it doesn’t apply here.”

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.