Humphrey’s Executor v. United States established a central tenet of our modern administrative state: Independent agency leaders can be insulated from presidential control by for-cause removal protections.[1] Typically, the President can remove independent agency heads only when they exhibit “neglect,” “inefficiency,” or “malfeasance.”[2] This principle has long allowed the National Labor Relations Board (NLRB)—the agency that oversees labor relations and protects workers’ rights to unionize, bargain for contracts, and engage in concerted activity[3]—to operate without interference from the executive branch. And despite the contentious nature of labor relations, the five-member NLRB has historically adhered to a bipartisan structure (split 3–2 along party lines).[4] But this independence (and the Board’s modest bipartisan split) are on life support; the Supreme Court is slated to overturn Humphrey’s Executor this term.

At argument in December 2025 in Trump v. Slaughter—a case regarding the constitutionality of FTC members’ removal protections—the justices’ questioning all but confirmed Humphrey’s Executor’s impending death.[5] The writing has been on the wall. The Court’s decisions in Seila Law v. Consumer Financial Protection Bureau and Collins v. Yellen whittled Humphrey’s Executor down to a narrow exception, significantly expanding the President’s unfettered removal power.[6] And this past fall the Court stayed a preliminary injunction in Trump v. Wilcox, finding the Trump administration was “likely to succeed” on its claim that the President has the authority to remove NLRB members at will.[7]

So, what does Humphrey’s Executor’s demise mean for workers’ rights? The NLRB will no longer operate independently of the executive branch, as Trump’s politically motivated firing of Biden-nominated Board member Gwynne Wilcox underscores. As former NLRB chairman Laura McFerran put it, “[t]his “intrusion of political favoritism into its day-to-day operations w[ill] compromise the agency’s basic functioning, and put workers’ rights in jeopardy.”[8] Board members nominated by conservative Presidents typically come from management-side backgrounds and are less-than-friendly toward workers.[9] So now, instead of a modest 3–2 bipartisan split, workers will likely face an entirely Trump-nominated Board of pro-business members. Workers’ rights are in peril.

Organizers and workers’ rights advocates are already planning for life with a hostile NLRB, and have identified one possible avenue to revive the National Labor Relations Act’s (NLRA) protections: a legislatively-created private cause of action.[10] First suggested by labor scholars and recently endorsed by former NLRB chairman Laura McFerran, adding a private cause of action to the NLRA would allow workers to sue their employers directly in federal court, bypassing NLRB adjudication entirely.[11]

This is a feasible work-around for two reasons. For one, private-cause-of-action provisions exist in other major employment laws like Title VII, FLSA, and ADA.[12] For another, adding a private cause of action does not require any controversial change to the substance of NLRA’s protections—it merely adds an additional pathway for enforcement.[13] True, it would come with some drawbacks. Most obviously, few workers can afford to bring private lawsuits.[14] And even those who can will be wary of employer-friendly courts making substantively bad, anti-worker and anti-union law.[15] So, a private cause of action is not a cure-all. But it is a direct avenue of redress that would—at minimum—give workers a way to enforce their NLRA rights as we enter a world where the NLRB and other independent agencies serve the President, not the people.

 

 

[1] 295 U.S. 602, 630–32 (1935).  

[2] See, e.g., 29 U.S.C. §153(a) (permitting removal of NLRB members only for “neglect of duty or malfeasance in office”); 5 U.S.C. §1202(d) (permitting removal of MSPB members only for “inefficiency, neglect of duty, or malfeasance in office”).

[3] What We Do, Nat’l Lab. Rel. Bd., https://www.nlrb.gov/about-nlrb/what-we-do https://perma.cc/GK8H-THJX (last visited Dec. 16, 2025).

[4] Emma Barudi, An Assumed Tradition: How the 3-2 Balance of the NLRB Is More Than the Sum of Its Appointments and an Argument for Its Continuation, 26 N.Y.U. J. Leg. & Pub. Pol. 817, 819 (2023).

[5] Laura McFerran, How to Save Labor Law from Slaughter, The Century Found. (Dec. 11, 2025), https://tcf.org/content/commentary/how-to-save-labor-law-from-slaughter/  https://perma.cc/3SB5-QW7E.

[6] Seila Law LLC v. Consumer Financial Protection, 519 U.S. 197 (2020); Collins v. Yellen, 594 U.S. 220 (2021).

[7] Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025).

[8] See McFerran, supra note 5.

[9] Barudi, supra note 4 at 820.

[10] See McFerran, supra note 5.

[11] Id.

[12] See 42 U.S.C. § 2000e-5 (Title VII private cause of action provisions); 29 U.S.C. § 216(b) (FLSA private cause of action provision); 42 U.S.C. § 12117 (ADA).

[13] See McFerran, supra note 5.

[14] See David Cooper & Teresa Kroeger, Employers steal billions from workers’ paychecks each year, Econ. Pol’y Inst., 6 (May 10, 2017), https://perma.cc/NSF7-4WVZ (“Few workers who experience wage and hour violations are able to pursue a private lawsuit against their employer, and even fewer employers end up paying any significant restitution.”).

[15] McFerran, supra note 5.