5th Circuit Finds NLRB To Be Unconstitutional.
A Federal Appellate Court Finds the NLRB to Be Unconstitutional.
And just like that, it frees Elon Musk—and any fellow employers—to violate whatever rights their workers thought they enjoyed.
by Harold Meyerson/The American Prospect
August 25, 2025
The National Labor Relations Act—that pillar of American democracy that gives workers the right to bargain collectively with their employers—was enacted 90 years ago this summer. Its constitutionality was upheld two years later by the Supreme Court, and no successful challenge to its constitutionality has been brought in the subsequent 88 years. Until last week, when the avowedly far-right Fifth Circuit decided otherwise.
Today, the NLRA hovers somewhere between de facto and de jure nullification. It’s been slowly eroding for at least half a century, as employer resistance to it has heightened, and as the penalties to employers for violating its terms have weakened. Currently, the fact that the five-member National Labor Relations Board is down to just two members—not enough to constitute a quorum—means the Board can make no rulings. This enables employers who’ve been found to have violated workers’ rights by lower NLRB administrative courts to appeal those findings and penalties to the Board, which cannot rule on anything—essentially, giving those employers leeway to keep on doing what they’re doing, however illegal it may be.
The Board is only down to two members because President Trump fired Biden-appointed and congressionally confirmed Board chair Gwynne Wilcox in the middle of her term, which, as for all Board members, was set by the NLRA to run for five years. Under the law, presidents had the power to remove members before their terms expire only in the event of “neglect of duty or malfeasance in office,” which Trump didn’t even allege when he fired Wilcox.
In May, the Republican majority on the Supreme Court upheld Trump’s power to fire Board members at will, under the still-novel theory of the unitary executive, which holds that the federal agencies that Congress established and presidents signed into law to be independent of presidential power, save only the power to appoint their leaders, are now in violation of the newly discovered right of presidents to completely control these agencies. The Republican justices are expected to soon reverse the Court’s 1935 ruling in a case called Humphrey’s Executor, which limited the president’s power over independent regulatory agencies. By upholding Trump’s firing of Wilcox and other heads of regulatory agencies, those justices have positioned themselves to rule that such limitations violate the Constitution’s vesting of executive power in the president.
Last week, the Fifth Circuit circumscribed the NLRB’s power even more. Before the court was a suit that Elon Musk’s SpaceX had filed against the Board, concerning a pending investigation from one of the Board’s regional attorneys into claims that SpaceX had violated its workers’ rights by firing eight of them for going online to opine that Musk’s online verbal outbursts and abuses actually hurt the company’s standing. SpaceX had sought an immediate injunction overturning the Board’s right to investigate those charges, saying that it inflicted “irreparable harm” on the company, even though it was the fired workers who suffered harm and even though the only entity inflicting irreparable harm on Musk’s companies has been Musk himself, through the very outbursts and bigoted behavior that his employees had warned against. (See, e.g., Musk’s effect on Tesla sales.)
Today, the National Labor Relations Act hovers somewhere between de facto and de jure nullification.
In seeking SpaceX’s injunction to stop any investigation the Board might order, its attorneys, from the union-busting firm of Morgan Lewis, based their claim on the argument that the Board itself was unconstitutional, since it had been established, and had been operating for the past 90 years, as an agency that the president couldn’t completely control. The two Trump-appointed judges and the one George H.W. Bush–appointed judge who heard the case found for SpaceX, in a ruling that will now extend to any and every case brought against the NLRB or against employers or unions that the NLRB would adjudicate in the Fifth Circuit, which encompasses Louisiana, Mississippi, and Texas. And in this era of judge shopping, mega-companies that may have one part-time employee or a single post office box in one of those states “may now flood the Fifth Circuit” to avoid any enforcement of decisions upholding workers’ rights, former NLRB general counsel Jennifer Abruzzo told me in the wake of the court’s ruling.
The neutering or repeal of the NLRA has been in the works for several years. Both Musk and his fellow world’s-richest-human competitor, Jeff Bezos, had initiated suits last year claiming that the act—the only act that gives workers the power to bargain with their employers and seek remedies when those employers violate labor laws—was unconstitutional. Even before then, Musk had publicly proclaimed that he was “opposed to the idea of unions.” And just as Musk’s SpaceX had contested an NLRB finding by seeking an injunction against it premised on the act’s unconstitutionality, so Bezos’s Amazon had filed a similar suit seeking a similar injunction on similar grounds. In the Amazon case, the company was opposed not only by the NLRB but by the union of the affected workers, the Teamsters. (That case is still in the works.) The SpaceX workers neither had a union affiliation nor were seeking one, so the only parties to the case were the company and the agency.
But the agency is now inert at the top, and has an acting general counsel put there by Trump. Trump’s nominee for permanent general counsel, Crystal Carey—a former partner at Morgan Lewis, the firm representing SpaceX in this case—was asked by Bernie Sanders in her Senate confirmation hearing last month whether she believed the NLRB was constitutional. That, she answered, was up to the courts, declining to say whether she herself believed it was, and raising the possibility, verging on probability, that she wouldn’t have the agency oppose the argument that SpaceX was making. As of now, Carey remains unconfirmed, as her over-the-top support for employer rule over workers alienated at least one Republican member of the Senate committee.
The Fifth Circuit could have ruled that it was the act’s language forbidding presidents to make at-will firings that was unconstitutional. But by going beyond that to flatly declare that the Board itself was unconstitutional, it completely blocked workers from any attempts to have the act’s protection of their rights upheld by, or even heard by, federal courts in those three states. By granting that immediate injunction, it nullified Board attorneys’ power to simply investigate allegations. (In a concurring opinion, one of the three justices said he’d tried and failed to find any of the irreparable harm to SpaceX presumably posed by an NLRB attorney’s investigation, but he let the ruling stand nonetheless. In the Trump judiciary’s war on workers, empirical concerns appear only as the faintest of whispers.)
Abruzzo, whose service as NLRB general counsel during Biden’s presidency ranks as the most brilliantly pro-worker tenure of any federal official since Sen. Robert Wagner, the NLRA’s author, has some ideas about what can be done if the NLRB remains deactivated or is abolished altogether. “States have to step in,” she told me, “if the NLRB is no longer functioning.” Already, some states have enacted laws banning employers from compelling their employees to listen to anti-union propaganda. Many have extended bargaining rights to workers excluded from the protections of the NLRA. But if the NLRB is no longer functioning and, for instance, can no longer hold union affiliation elections for a company’s workers, then states should consider holding such elections, she suggested. And even if the NLRA is struck down in toto, she noted, workers would still retain their fundamental right to recourse. The years immediately preceding its 1935 enactment, she recalled, were filled with boycotts, strikes, and even general strikes that closed cities down. Workers will “still have the power to withhold their labor,” she said.
For now, it’s important to remember that the federal assault on workers’ rights isn’t all Trump’s doing, or Musk’s, or Bezos’s. Republican officials and American CEOs and mega-investors have been opposed to workers’ rights and power for a very long time, just as many Democrats—not a lot, but enough to make a difference—have been lax in defending them. Today, the bough has been bent to the point that it’s almost broken. A catastrophic snap may come soon.
The American Prospect is nonprofit, reader-funded journalism.
And just like that, it frees Elon Musk—and any fellow employers—to violate whatever rights their workers thought they enjoyed.
by Harold Meyerson/The American Prospect
August 25, 2025
The National Labor Relations Act—that pillar of American democracy that gives workers the right to bargain collectively with their employers—was enacted 90 years ago this summer. Its constitutionality was upheld two years later by the Supreme Court, and no successful challenge to its constitutionality has been brought in the subsequent 88 years. Until last week, when the avowedly far-right Fifth Circuit decided otherwise.
Today, the NLRA hovers somewhere between de facto and de jure nullification. It’s been slowly eroding for at least half a century, as employer resistance to it has heightened, and as the penalties to employers for violating its terms have weakened. Currently, the fact that the five-member National Labor Relations Board is down to just two members—not enough to constitute a quorum—means the Board can make no rulings. This enables employers who’ve been found to have violated workers’ rights by lower NLRB administrative courts to appeal those findings and penalties to the Board, which cannot rule on anything—essentially, giving those employers leeway to keep on doing what they’re doing, however illegal it may be.
The Board is only down to two members because President Trump fired Biden-appointed and congressionally confirmed Board chair Gwynne Wilcox in the middle of her term, which, as for all Board members, was set by the NLRA to run for five years. Under the law, presidents had the power to remove members before their terms expire only in the event of “neglect of duty or malfeasance in office,” which Trump didn’t even allege when he fired Wilcox.
In May, the Republican majority on the Supreme Court upheld Trump’s power to fire Board members at will, under the still-novel theory of the unitary executive, which holds that the federal agencies that Congress established and presidents signed into law to be independent of presidential power, save only the power to appoint their leaders, are now in violation of the newly discovered right of presidents to completely control these agencies. The Republican justices are expected to soon reverse the Court’s 1935 ruling in a case called Humphrey’s Executor, which limited the president’s power over independent regulatory agencies. By upholding Trump’s firing of Wilcox and other heads of regulatory agencies, those justices have positioned themselves to rule that such limitations violate the Constitution’s vesting of executive power in the president.
Last week, the Fifth Circuit circumscribed the NLRB’s power even more. Before the court was a suit that Elon Musk’s SpaceX had filed against the Board, concerning a pending investigation from one of the Board’s regional attorneys into claims that SpaceX had violated its workers’ rights by firing eight of them for going online to opine that Musk’s online verbal outbursts and abuses actually hurt the company’s standing. SpaceX had sought an immediate injunction overturning the Board’s right to investigate those charges, saying that it inflicted “irreparable harm” on the company, even though it was the fired workers who suffered harm and even though the only entity inflicting irreparable harm on Musk’s companies has been Musk himself, through the very outbursts and bigoted behavior that his employees had warned against. (See, e.g., Musk’s effect on Tesla sales.)
Today, the National Labor Relations Act hovers somewhere between de facto and de jure nullification.
In seeking SpaceX’s injunction to stop any investigation the Board might order, its attorneys, from the union-busting firm of Morgan Lewis, based their claim on the argument that the Board itself was unconstitutional, since it had been established, and had been operating for the past 90 years, as an agency that the president couldn’t completely control. The two Trump-appointed judges and the one George H.W. Bush–appointed judge who heard the case found for SpaceX, in a ruling that will now extend to any and every case brought against the NLRB or against employers or unions that the NLRB would adjudicate in the Fifth Circuit, which encompasses Louisiana, Mississippi, and Texas. And in this era of judge shopping, mega-companies that may have one part-time employee or a single post office box in one of those states “may now flood the Fifth Circuit” to avoid any enforcement of decisions upholding workers’ rights, former NLRB general counsel Jennifer Abruzzo told me in the wake of the court’s ruling.
The neutering or repeal of the NLRA has been in the works for several years. Both Musk and his fellow world’s-richest-human competitor, Jeff Bezos, had initiated suits last year claiming that the act—the only act that gives workers the power to bargain with their employers and seek remedies when those employers violate labor laws—was unconstitutional. Even before then, Musk had publicly proclaimed that he was “opposed to the idea of unions.” And just as Musk’s SpaceX had contested an NLRB finding by seeking an injunction against it premised on the act’s unconstitutionality, so Bezos’s Amazon had filed a similar suit seeking a similar injunction on similar grounds. In the Amazon case, the company was opposed not only by the NLRB but by the union of the affected workers, the Teamsters. (That case is still in the works.) The SpaceX workers neither had a union affiliation nor were seeking one, so the only parties to the case were the company and the agency.
But the agency is now inert at the top, and has an acting general counsel put there by Trump. Trump’s nominee for permanent general counsel, Crystal Carey—a former partner at Morgan Lewis, the firm representing SpaceX in this case—was asked by Bernie Sanders in her Senate confirmation hearing last month whether she believed the NLRB was constitutional. That, she answered, was up to the courts, declining to say whether she herself believed it was, and raising the possibility, verging on probability, that she wouldn’t have the agency oppose the argument that SpaceX was making. As of now, Carey remains unconfirmed, as her over-the-top support for employer rule over workers alienated at least one Republican member of the Senate committee.
The Fifth Circuit could have ruled that it was the act’s language forbidding presidents to make at-will firings that was unconstitutional. But by going beyond that to flatly declare that the Board itself was unconstitutional, it completely blocked workers from any attempts to have the act’s protection of their rights upheld by, or even heard by, federal courts in those three states. By granting that immediate injunction, it nullified Board attorneys’ power to simply investigate allegations. (In a concurring opinion, one of the three justices said he’d tried and failed to find any of the irreparable harm to SpaceX presumably posed by an NLRB attorney’s investigation, but he let the ruling stand nonetheless. In the Trump judiciary’s war on workers, empirical concerns appear only as the faintest of whispers.)
Abruzzo, whose service as NLRB general counsel during Biden’s presidency ranks as the most brilliantly pro-worker tenure of any federal official since Sen. Robert Wagner, the NLRA’s author, has some ideas about what can be done if the NLRB remains deactivated or is abolished altogether. “States have to step in,” she told me, “if the NLRB is no longer functioning.” Already, some states have enacted laws banning employers from compelling their employees to listen to anti-union propaganda. Many have extended bargaining rights to workers excluded from the protections of the NLRA. But if the NLRB is no longer functioning and, for instance, can no longer hold union affiliation elections for a company’s workers, then states should consider holding such elections, she suggested. And even if the NLRA is struck down in toto, she noted, workers would still retain their fundamental right to recourse. The years immediately preceding its 1935 enactment, she recalled, were filled with boycotts, strikes, and even general strikes that closed cities down. Workers will “still have the power to withhold their labor,” she said.
For now, it’s important to remember that the federal assault on workers’ rights isn’t all Trump’s doing, or Musk’s, or Bezos’s. Republican officials and American CEOs and mega-investors have been opposed to workers’ rights and power for a very long time, just as many Democrats—not a lot, but enough to make a difference—have been lax in defending them. Today, the bough has been bent to the point that it’s almost broken. A catastrophic snap may come soon.
The American Prospect is nonprofit, reader-funded journalism.
