
Dallas Employment Trial Lawyer Austin Campbell
Summary: This article discusses the implications of the Trump administration’s removal of members from independent federal agencies tasked with protecting employee rights.
I previously wrote about the possibility of the then-incoming Trump administration implementing various aspects of Project 2025. Unfortunately, it seems that one way the Trump administration may go about pursuing that agenda is by stripping agencies of their ability to act by removing their “quorums.”
Some federal agencies (in particular, those related to things such as employee or consumer rights) are organized as independent boards or commissions with legal limits on when a president can remove board members or commissioners. These agencies commonly only have Congressional authority to act as a full body—not through individual board members or commissioners. These sorts of agencies generally require a quorum, a minimum number of members, to have that legal authority. On the one hand this setup makes sense, as it prevents these agencies from being run by just one person, making them more independent of changing administrations. But this also means that if a presidential administration removes members—or simply fails to fill vacancies—that can eliminate an agency’s quorum and thus delay its ability to take many actions.
The Trump administration doesn’t have the legal authority to simply abolish federal agencies set up by Congress (not that that has stopped it from trying anyway). But for an administration philosophically opposed to the missions of some or all federal agencies, preventing a quorum can be a way to stymie these agencies while “technically” staying within the scope of the law.
Due to the first Trump administration, the Merit Systems Protection Board lacked a quorum for five years, from 2017 to 2022. As a result of this, the Board itself could not take action during that time. The purpose of the MSPB is to allow federal employees to protect their due process rights by challenging improper or illegal personnel actions. While federal employees could file initial appeals with an MSPB Administrative Judge during this time, if either employees or federal agencies further appealed the Administrative Judge’s decision, the case was essentially stuck in limbo unless and until a quorum was restored, because there was no Board to hear the appeal. This left federal employees without relief for years at a time, resulting in a backlog of almost 4,000 cases. Even after a quorum was finally re-established during the Biden administration, the MSPB may not fully clear that backlog until 2025.
Now, not even a month into the second Trump administration, the Equal Employment Opportunity Commission (in charge of enforcing many anti-discrimination laws) and National Labor Relations Board (in charge of enforcing union agreements and stopping unfair labor practices) both lack quorums due to the Trump administration firing members. This prevents these agencies from hearing appeals and from issuing new rules and regulations. Even if the legality of the terminations is dubious, they still have the effect of indefinitely delaying employees’ efforts to protect their rights through these agencies. Indeed, the EEOC has started telling some charging parties that their cases are “temporarily paused . . . due to the recent executive order impacting federal agency operations.” If prior experience with the MSPB’s lack of quorum is any evidence, a temporary delay could in fact last years. And even if a quorum is restored, it is probably safe to assume that Trump loyalists—much less likely to be sympathetic to civil rights laws and employee protections—will be appointed. Indeed, the remaining EEOC commissioners have already purported to eliminate recent guidance on sex discrimination—one of the Project 2025 goals.
Overall, this is not a good sign for employees’ ability to protect their rights over the next four years. It is also a reminder of the power of subtle legal nuances to delay justice. If you are concerned that your employer has violated your legal rights, you should speak to an employment attorney like those at Rob Wiley, P.C.