Appellate Court Finds the NLRB to Be Unconstitutional?
Ruling Background
On August 19, 2025, the U.S. Court of Appeals for the Fifth Circuit ruled that the structure of the National Labor Relations Board (NLRB)—specifically, the statutory protections preventing presidential removal of its members and administrative law judges—is likely unconstitutional. This marked the first time an appellate court has questioned the agency’s structural integrity.
The Case at Hand
The ruling emerged from consolidated lawsuits initiated by employers including SpaceX, who had challenged the NLRB’s authority to prosecute them, arguing the agency was unconstitutionally insulated from presidential oversight.
Implications for the NLRB
The court’s decision has effectively blocked the NLRB from pursuing cases against the plaintiffs within the Fifth Circuit’s jurisdiction (Texas, Louisiana, Mississippi). As noted by a former NLRB general counsel, this could lead employers to “forum shop” to evade enforcement altogether.
Constitutional Interpretation
The Fifth Circuit concluded that the dual-layered “for-cause” removal protections—shielding both board members and ALJs—undermine the president’s executive authority under Article II. The court argued these protections create an independent power shield, contravening the separation of powers.
Broader Consequences
Legal observers anticipate the NLRB will appeal, potentially elevating the case to the Supreme Court. This decision signals a pivotal test for agency independence and could reshape how labor law is enforced and how federal agencies are structured.
Why It Matters
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Weakens NLRB independence, potentially compromising its ability to enforce labor protections.
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Creates uneven enforcement, as employers may exploit favorable jurisdiction to avoid compliance.
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Sets constitutional precedent, likely influencing the future structure of other independent agencies.
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Shapes executive power, potentially recalibrating the President’s control over federal agencies.
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Raises uncertainty for businesses and unions, particularly within affected Fifth Circuit states.
Key Legal Outcomes
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Preliminary injunctions upheld, halting NLRB cases against SpaceX and others in the Fifth Circuit.
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Removal protections deemed likely unconstitutional, challenging the agency’s structural foundation.
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Irreparable harm recognized, since parties cannot be forced to proceed before a constitutionally dubious tribunal.
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Potential for Supreme Court review, which could redefine the future of independent agency governance.
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Encouragement of jurisdictional maneuvers, as employers may seek more favorable courts to contest enforcement.
Publication Date & Live Link
- Publication Date: August 25, 2025
- Live Link (The American Prospect): A Federal Appellate Court Finds the NLRB to Be Unconstitutional
