Shortly after President Trump removed NLRB Member Gywnne Wilcox, I wrote that the Supreme Court will not repudiate Humphrey’s Executor. Now, having read Trump’s removal letter, the Court may not have to.
Wilcox has moved for expedited summary judgment in D.D.C. on the same schedule as a preliminary injunction. In a declaration, Wilcox states that Trump did not “justify my removal on the ground that I committed any neglect of duty or malfeasance in office.” The motion includes an exhibit I had not yet seen: President Trump’s removal letter.
The letter offers two paragraphs to explain the removal. I see at least one passage that could rise to the level of “neglect of duty or malfeasance in office.” Trump stated:
In my judgment, Members Wilcox and General Counsel Abruzzo have adopted a host of decisions that have improperly cabined employers’ rights to speak on the subject of unionization, raising serious First Amendment concerns about the censorship of important speech. Several such decisions were issued on the eve of the new Administration. They have also issued decisions that, in my judgment, have vastly exceeded the bounds of the National Labor Relations Act. To take just one example, they supported a new joint employer rule—a rule that courts then invalidated and the Board seemingly acknowledged could not go forward.
Trump alleges Wilcox’s may have violated the Free Speech Clause, exceeded the statutory authority of the agency, and proposed a rule that was declared unlawful by courts. To be sure, Wilcox would argue that her actions were consistent with the Constitution and the NLRA, and the courts were mistaken. But the President has the duty to take care that the laws are faithfully executed. I would think that obligation entails the power to decide that someone in an agency has violated the Constitution, or at least came close to violating it.
The last sentence of the letter states, “you are removable with or without statutory cause by the President.” Trump may argue these steps triggered a for-cause removal. (The statute also requires a notice and hearing before removal; I am reasonably confident that the Court would not uphold these sorts of dilatory procedural requirements.)
Seila Law did not have occasion to define what “neglect of duty or malfeasance in office” means. However, Judge Griffith’s concurrence in PHH v. CFPB did address these terms. He wrote:
My colleagues debate whether the agency’s single-Director structure impermissibly interferes with the President’s ability to supervise the Executive Branch. But to make sense of that inquiry, we must first answer a more fundamental question: How difficult is it for the President to remove the Director? The President may remove the CFPB Director for “inefficiency, neglect of duty, or malfeasance in office.” After reviewing these removal grounds, I conclude they provide only a minimal restriction on the President’s removal power, even permitting him to remove the Director for ineffective policy choices.
…
The INM standard provides three separate grounds for removal. Although the standard may seem to be a unitary, general “for cause” provision, the Supreme Court has clarified that these three grounds carry discrete meanings . . . Moreover, Congress has enacted other statutes that include only two of the three INM removal grounds, indicating that each term bears a distinct meaning. For instance, weeks after the Court decided Humphrey’s Executor, Congress added a removal provision to the National Labor Relations Act, but it narrowed the INM standard by eliminating “inefficiency.” See ch. 372, § 3, 49 Stat. 449, 451 (1935) (codified at 29 U.S.C. § 153).
Turning then to each basis for removal, “malfeasance” was defined as “the doing of that which ought not to be done; wrongful conduct, especially official misconduct; violation of a public trust or obligation; specifically, the doing of an act which is positively unlawful or wrongful, in contradistinction to misfeasance.” 6 The Century Dictionary and Cyclopedia 3593 (Benjamin E. Smith ed., 1911). “Neglect of duty” meant “failure to do something that one is bound to do,” a definition broadly echoed by courts and dictionaries alike. See A Law Dictionary 404-05, 810 (Henry Campbell Black ed., 2d ed. 1910).
The NLRA does not include the standard of “inefficiency,” as did the Dodd-Frank Act. Judge Griffith noticed the contrast:
Elsewhere Congress has elected to provide greater protection. For example, only weeks after Humphrey’s Executor Congress chose not to include “inefficiency” as a ground for removal in the National Labor Relations Act. See ch. 372, § 3, 49 Stat. 449, 451 (1935) (codified at 29 U.S.C. § 153) (permitting removal “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause”).
If the terms “malfeasance” and “neglect of duty” can be construed broadly, then I think the grounds that Trump identified could meet the standards of for-cause removal. Maybe Humphrey’s Executor will live on, as a ghost.
