The NLRB’s structure was found likely unconstitutional in a recent Fifth Court ruling. This ruling cited the dual “for-cause” protection from presidential removal for NLRB administrative law judges and board members. This decision prevents the NLRB from prosecuting certain unfair labor practice cases but doesn’t halt its overall operations, though it creates uncertainty and will likely lead to Supreme Court review. The core argument is that this structure violates the President’s constitutional authority under Article II to oversee the executive branch.
The Fifth Circuit’s Ruling
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- The Case: In a ruling on August 19, 2025, the Fifth Circuit upheld injunctions barring the NLRB from prosecuting unfair labor practice cases against companies like SpaceX.
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- The Argument: The court found that the structure of the NLRB likely violates the U.S. Constitution because both its administrative law judges (ALJs) and its board members are insulated from presidential removal by layers of “for-cause” protection.
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- Constitutional Basis: This is seen as a violation of Article II of the Constitution, which grants the President the power to remove executive officials.
Why This Matters
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- Undermines Authority: The decision challenges the foundational structure of the NLRB, which was established in 1935.
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- Uncertainty for Employers: Employers face increased litigation and policy shifts as a result of this ruling, though staying compliant with existing law remains the safest approach, according to Goldberg Segalla.
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- Potential Supreme Court Review: This ruling is expected to lead to further appeals and a potential Supreme Court showdown to determine the NLRB’s ultimate fate.
What Happens Next?
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- Appeals: The NLRB will likely appeal the Fifth Circuit’s decision.
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- Supreme Court: The case could ultimately be heard by the Supreme Court, which will decide the constitutionality of the NLRB’s structure.
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- Broader Implications: If the Supreme Court finds the NLRB unconstitutional, it could have significant negative repercussions for labor rights in the United States.
