Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in The National Law Journal, in “Trump’s Firing of NLRB Member Could Spark Review of Supreme Court Precedent,” by Avalon Zoppo. (Read the full version – subscription required.)
Following is an excerpt:
Steve Swirsky, co-chair of Epstein Becker Green’s labor-management relations practice group, agreed Wilcox’s firing could lead to Humphrey’s Executor being revisited if she brings a complaint, with the Trump administration potentially arguing the justices were incorrect to say there’s no separation-of-powers problems with for-cause removal shields at agencies like the FTC.
Swirsky said the administration could also argue that the precedent doesn’t apply in Wilcox’ situation because the NLRB is statutorily structured differently than the FTC.
The NLRB’s enabling legislation is unique in that it states members are appointed by the president to five-year terms but doesn’t specify that the board must be balanced on partisan lines, Swirsky said. The Federal Trade Commission Act, by contrast, says no more than three commissioners can be of the same political party.
He predicted that 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."
"I do expect that that they [would] argue that Humphrey's is no longer good law, or at minimum, that if it stands, that it doesn't apply here," Swirsky said.
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