How to Capture an Agency Without Winning a Case

The three-step playbook the administration ran on the NLRB, EEOC, MSPB, and FTC

Photo by Valentino Funghi on Unsplash

On January 27, 2025, the Trump administration fired Board Member Gwynne Wilcox from the National Labor Relations Board (NLRB). Her term was not set to expire until 2028.

The same week, the administration removed General Counsel Jennifer Abruzzo. With Wilcox gone, the Board dropped below the three-member quorum it needs to decide cases, hear appeals, or issue binding precedent.

It would not regain that quorum for 345 days.

The National Labor Relations Board is not a policy shop or an advisory body. It is an adjudicative tribunal.

When a worker in the United States believes they have been fired for organizing a union, disciplined for raising safety concerns with coworkers, or subjected to workplace rules designed to suppress collective action, they file an unfair labor practice charge with the NLRB. A regional office investigates. If the charge has merit, it proceeds to a hearing before an administrative law judge.

When a party appeals, the Board itself, the multi-member panel in Washington, issues the final decision. That decision carries the force of law. It is enforceable in federal court. It is, for the workers and employers involved, the system working as designed.

That is the system the National Labor Relations Act established in 1935. For 345 days, starting in January 2025, the system could not operate. Approximately 500 unfair labor practice cases accumulated in a queue that no one was authorized to resolve. Workers who had filed charges alleging illegal termination, retaliation for organizing, and unlawful workplace rules sat in procedural limbo, their cases acknowledged but unadjudicated. Employers facing those charges had no reason to negotiate, no reason to settle, no reason to change the conduct that prompted the complaint. There was no tribunal capable of ruling against them.

The quorum crisis did not merely slow adjudication. It created a structural incentive for every respondent in every pending case to wait. Every employer facing a charge knew that the Board could not act. Every worker who had filed a claim learned the same thing. The filing existed. The forum did not.

The paralysis extended beyond unfair labor practice charges. Representation petitions, the mechanism by which workers request a union election, could still be processed at the regional level, but any contested outcome had nowhere to go.

Employers who challenged election results could tie up the certification process indefinitely, knowing the Board could not issue a final decision. Workers who had voted to unionize waited for a certification that was structurally unable to arrive.

The operational data quantified the scale. NLRB-overseen union elections fell 30 percent, from 2,124 in 2024 to 1,498 in 2025. Fifty-nine thousand fewer workers participated in those elections, a drop from 142,000 to 83,000.

A Fifth Circuit ruling that halted NLRB proceedings in its jurisdiction meant that workers in Texas, Louisiana, and Mississippi functionally lost their federal labor rights entirely. In those states, the statute existed as written law without an operational enforcement mechanism.

A worker fired for union activity in Houston had the same statutory protections as a worker in Chicago. The Houston worker had no functioning agency to hear the charge.

On January 7, 2026, three new officials were sworn in: Board Members James Murphy and Scott Mayer, both Trump appointees, and NLRB General Counsel Crystal Carey, who had spent her career at Morgan Lewis & Bockius representing employers in labor disputes before the very agency she would now lead.

For the first time in nearly a year, the Board had a quorum. It had entirely new leadership, drawn entirely from the management side of labor law. And those 500 cases that had waited in silence were about to find out what kind of Board had been assembled to hear them.

The same thing happened everywhere

The NLRB was not the only agency that lost its quorum in January 2025.

On January 27, the same day the administration fired Wilcox from the NLRB, it fired Equal Employment Opportunity Commission Chair Charlotte Burrows and Vice Chair Jocelyn Samuels. Burrows’s term ran through July 2028. Samuels’s through July 2026. The administration also removed General Counsel Karla Gilbride, whose four-year term would not have ended until 2027.

In the sixty-year history of the EEOC, no sitting commissioner had ever been removed by the White House before the expiration of their term. On a single day, three were removed simultaneously.

The EEOC dropped below quorum. The agency that enforces Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act could not vote on new policy guidance, authorize significant litigation, or issue binding decisions in contested cases.

Employers facing systemic discrimination charges, workers awaiting resolution of harassment claims, and employees challenging discriminatory termination all found their cases suspended in an agency that lacked the membership to act on them. The EEOC remained in that posture for nine months, until the Senate confirmed Brittany Panuccio as the third commissioner on October 7, 2025, restoring quorum with a Republican majority. Andrea Lucas was named chair on November 5.

The reconstituted EEOC immediately shifted its enforcement priorities: targeting corporate DEI programs as potential violations of Title VII, revising Pregnant Workers Fairness Act regulations, expanding religious accommodation claims, and pulling back from LGBTQ+ workplace protections that the prior commission had advanced. The agency’s mission had been reversed from within, one enforcement priority at a time.

In February 2025, the administration removed Merit Systems Protection Board Chair Cathy Harris, who had four years remaining on her term. The Merit Systems Protection Board (MSPB) lost its quorum by March and would not restore it until October 2025.

The MSPB is the agency where federal employees appeal wrongful termination, suspension, and whistleblower retaliation. It is, for the millions of civilians who work for the federal government, the tribunal that stands between a politically motivated firing and the loss of a career. Without a quorum, employees who had been fired could not obtain a final Board decision, and without a final Board decision, they could not access judicial review in federal court.

The procedural trap was complete: the statute gives employees a right to appeal, but the appeal goes nowhere without a functioning Board. A federal employee terminated in alleged retaliation for reporting waste, fraud, or abuse had no adjudicative path to a final resolution.

This was the second time in a decade the MSPB had been collapsed below quorum. From 2017 to 2022, the Board operated without the members necessary to decide cases, and approximately 3,800 appeals accumulated without resolution over more than five years. The 2025 collapse reproduced the same dysfunction through the same mechanism: the removal or non-replacement of board members, leading to a structural inability to adjudicate.

In December 2025, the D.C. Circuit ruled in *Harris v. Bessent* that Congress may not prohibit the president from removing MSPB board members, holding that the Board exercises powers that are executive in nature. The full D.C. Circuit declined rehearing on January 9, 2026.

On March 18, 2025, the administration fired Federal Trade Commission Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya without citing statutory cause. A judge granted summary judgment for Slaughter, holding the removal unlawful, and the D.C. Circuit declined to stay the ruling. On September 22, 2025, the Supreme Court stayed the decision 6–3, allowing the removal to proceed while the justices considered whether to take up the case.

The Court allowed commissioners to be removed from office before deciding whether the removal was constitutional. The administration did not need to wait for a ruling. It had already received permission to act. Trump v. Slaughter is now before the Court, with oral argument completed on December 8, 2025, and a decision expected by late June 2026.

The boards came back different

On February 27, 2026, less than two months after the NLRB regained its quorum, NLRB General Counsel Crystal Carey issued a memo directing regional offices to deprioritize cases based solely on the maintenance of potentially unlawful workplace rules when there was no evidence of actual enforcement or impact on employees. It established a “charging party first” evidence standard, requiring workers to present evidence supporting their allegations within two weeks of filing a charge. It pushed settlement over litigation as the default resolution. And it restricted enhanced remedies, including notice readings, apology letters, and nationwide postings.

Consider what the “charging party first” standard means in practice. A worker who has just been fired for organizing a union must, within two weeks of filing, produce evidence to support the charge.

The evidence of employer motivation typically lives in the employer’s files, in internal communications, in management meeting notes. The worker does not have access to it. The employer does.

The prior enforcement model assumed that the agency would investigate, using its subpoena power and institutional resources to determine whether the charge had merit. The new model places the evidentiary burden on the person with the least access to evidence, under a timeline that makes gathering it nearly impossible.

Each of these provisions reversed the posture of the agency that had existed before the quorum collapsed. Under the prior General Counsel, the NLRB had moved to expand worker protections, broaden the definition of protected activity, and treat unlawful workplace rules as a high enforcement priority. Under Carey, the enforcement apparatus was being recalibrated in the opposite direction across every category the prior General Counsel had prioritized.

The Board’s decisional output confirmed the reversal. In its first six weeks after regaining quorum, the reconstituted NLRB issued 78 decisions. Of those, only seven contained binding legal analysis, and none of the seven exceeded three pages.

Nearly half of the 78 decisions denied requests to review regional director rulings. When the Board denies review, the regional director’s decision stands for that case, but no binding Board precedent is created. The legal landscape remains unsettled, the backlog shrinks on paper, and the agency avoids taking positions that could be challenged in federal court. The Board was processing volume by declining to engage with substance.

The substantive agenda was reserved for what mattered more: the systematic dismantling of the prior Board’s precedents. The Biden-era NLRB had issued a series of consequential rulings that reshaped labor law: Cemex, which established bargaining orders as a default remedy for employer election interference. A case involving Amazon held that mandatory captive-audience meetings violate the NLRA, overturning more than 75 years of contrary precedent. Stericycle, which made workplace rules presumptively unlawful if a reasonable employee could interpret them as restricting protected activity. Other cases restricted confidentiality and non-disparagement clauses in severance agreements, and expanded remedies to cover direct and foreseeable financial harms.

Each of these decisions is now expected to be narrowed or overturned by the reconstituted Board. When they fall, employers will again be free to hold mandatory captive-audience meetings during union campaigns, maintain workplace rules that chill organizing without facing a presumption of illegality, and include broad confidentiality and non-disparagement provisions in severance agreements that effectively silence separated workers.

The rights that the Biden-era Board recognized will not merely be dormant. They will be formally reversed by the same agency that recognized them, using the same adjudicative authority, under the same statute.

The sequence was the same at every agency: collapse the quorum, let the rights go unenforced, reconstitute under new management, and begin the reconstruction while the cases that accumulated during the collapse wait in the new queue.

The court that ratified the fait accompli

Trump v. Slaughter asks directly whether the president can remove FTC commissioners at will and whether *Humphrey’s Executor v. United States*, the 91-year-old precedent that established for-cause removal protections for heads of independent agencies, should be overturned.

The 1935 decision was unanimous. It held that Congress may restrict the president’s power to remove officials who head agencies that are “quasi-legislative” or “quasi-judicial” in character.

The Federal Trade Commission, the Court wrote, “cannot in any proper sense be characterized as an arm or an eye of the executive.” Commissioners could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”

For nine decades, that framework insulated the leadership of every independent regulatory and adjudicative agency from political removal. It was the constitutional architecture that made independent adjudication possible.

The Court has spent 15 years dismantling it. In *Free Enterprise Fund v. PCAOB, the Court struck down dual-layer for-cause removal protections, holding that Congress could not insulate officers behind two layers of removal restriction. In [Seila Law v. CFPB](https://www.oyez.org/cases/2019/19-7), the Court held that for-cause removal of a single agency director was unconstitutional, confining Humphrey’s Executor* to its original application: multimember commissions.

Each successive case narrowed the precedent further. By the time Trump v. Slaughter reached the Court, legal scholars regarded Humphrey’s Executor as being on life support.

The oral argument on December 8, 2025 confirmed what the trajectory suggested. The justices’ questions focused not on whether to overrule the precedent but on how. Justice Barrett acknowledged the erosion openly. And Chief Justice Roberts offered the assessment that settled the matter before the opinion was written: “Humphrey’s Executor is just a dried husk of whatever people used to think it was.”

The strongest argument for the administration’s position rests on Article II. The Vesting Clause places executive power in the president. The Take Care Clause directs the president to ensure faithful execution of the laws. If the president bears constitutional responsibility for executive action, the argument goes, the president must be able to remove the officers who carry it out.

Independent agency heads are unelected. The president is the only elected officer in the executive branch. Removal power ensures democratic accountability over agencies that wield enormous power.

The argument has intellectual depth, and the Court has been moving toward it for a generation. But it has a problem that the oral argument exposed.

As Justice Jackson noted from the bench, the agencies already answer to Congress. Congress established them and can eliminate them. Congress funds them and can defund them. Congress confirms their members and defines their jurisdiction.

The president’s removal power is not the only mechanism of democratic accountability. It is one of several. Overturning Humphrey’s Executor does not create accountability where none existed. It redirects accountability exclusively to the president, away from the branch that wrote the statutes these agencies enforce.

The Federal Reserve carve-out makes the logic harder to sustain. During oral argument, the Court signaled a willingness to exempt the Fed from any new removal-power framework, describing it as a “uniquely structured, quasi-private entity” that follows in the historical tradition of the First and Second Banks of the United States.

Legal scholars have questioned the coherence of this distinction, noting that no principled basis exists for treating the Federal Reserve’s removal protections as constitutionally valid while treating the FTC’s, the NLRB’s, and the MSPB’s as unconstitutional. If the constitutional principle is that the president must control all executive officers, the Fed exception is incoherent. If exceptions are permitted where political interference would be catastrophic, that principle applies with equal force to agencies that adjudicate individual workers’ rights, individual consumers’ claims, and individual federal employees’ terminations.

What adjudication looks like

Humphrey’s Executor is remembered as a case about presidential removal power. It is discussed in constitutional law courses as a separation of powers question: can Congress limit the president’s ability to fire executive officers? The debate has always been framed in those terms. The president’s authority. The commissioners’ tenure. The structural relationship between branches.

But that framing misses what the precedent actually protected. Humphrey’s Executor was not primarily about shielding individual commissioners from political retaliation. It was about ensuring that adjudication continues.

The independent agencies that the New Deal Congress created were designed to function as quasi-judicial bodies. The NLRB hears unfair labor practice charges. The EEOC investigates employment discrimination claims. The MSPB adjudicates federal employee appeals of termination and retaliation. The FTC prosecutes deceptive trade practices.

In each case, the agency acts as a tribunal. Workers, consumers, and federal employees bring cases. The agency investigates, holds hearings, and renders decisions. The for-cause removal protection was the structural mechanism that ensured those proceedings would continue across administrations, regardless of which party held the White House.

What the administration demonstrated between January 2025 and the present is what happens when that mechanism is removed. The tribunal collapses, the cases accumulate, and the board that eventually hears them has been rebuilt to rule the other way.

Workers who filed charges under one set of precedents discover that the rules changed while their cases sat in a queue. Federal employees who challenged their terminations discover that the Board empowered to hear their appeals no longer has the independence to rule against the president who appointed its members.

This is not a hypothetical sequence. It has already played out at four agencies simultaneously, with documented consequences at each one.

The cycle will repeat. Not because of a constitutional crisis, but because the structure now permits it. When the president can fire the members who constitute the quorum, the quorum exists at the president’s discretion. When the quorum exists at the president’s discretion, the adjudicative function of the agency exists at the president’s discretion.

Every future administration will inherit this power. Every future board will serve knowing that the president can remove its members, collapse its quorum, and reconstitute it with appointees who will reverse what the prior board decided. Every worker who files an unfair labor practice charge, every federal employee who appeals a termination, every consumer who challenges a deceptive practice will do so before a tribunal whose members serve at the pleasure of the president whose administration may be the respondent.

When the Court issues its opinion in Trump v. Slaughter in the coming weeks, it will not be announcing a new doctrine. It will be formalizing what the executive branch demonstrated and what four agencies absorbed in real time.

The question before the Court was never really whether the president should have this power. The president already exercised it.

What the Court is deciding is whether to write the constitutional permission slip after the fact, ratifying a transformation of independent adjudication that was completed before the justices heard a single minute of oral argument. The 91-year-old structural guarantee that rights adjudication would continue regardless of who held the presidency has already been removed. The opinion will simply make it official.