NLRB Will Likely Be Ruled Unconstitutional in 2026
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The 5th Circuit has effectively ruled the National Labor Relations Board unconstitutional. This will be kicked up to the Supreme Court, which will overturn 91 years of labor precedent like it was flushing a toilet.
SpaceX and two other companies can keep their court orders freezing unfair labor practice cases as they litigate their constitutional challenges to the National Labor Relations Board, a federal appeals court ruled in a case with regional implications for the agency.
The US Court of Appeals for the Fifth Circuit said Tuesday that being subjected to an unconstitutional administrative proceeding was an irreparable harm that justified preliminary injunctions halting NLRB cases.
“The Employers have made their case and should not have to choose between compliance and constitutionality,” Judge Don Willett, a Trump appointee, wrote for the court. “When an agency’s structure violates the separation of powers, the harm is immediate—and the remedy must be, too.”
The decision seems to guarantee that companies in the Fifth Circuit—which covers Texas, Louisiana, and Mississippi—can get district courts to block unfair labor practice cases by filing constitutional lawsuits against the agency.
The appeals court panel—which also included Judges Kyle Duncan, a Trump appointee, and Jacques Wiener, a George H.W. Bush appointee—rejected the NLRB’s challenge to injunctions won by the Elon Musk-run SpaceX, an Energy Transfer LP subsidiary, and public benefits corporation Findhelp.
Trump-appointed district judges in Texas granted injunctions based on Fifth Circuit precedent finding that Securities and Exchange Commission administrative law judges have unconstitutional removal protections to the companies’ claims against NLRB ALJs. In the SpaceX case, the judge also held that the board members’ job shields violated the Constitution.
Unions are going to have no response to this at all. Some, like the Teamsters, are going to be fine with it because at least Sean O’Brien doesn’t have to see a unisex bathroom. But even the more progressive unions are simply not set up at this point to engage in the type of pre-1935 fights that unions required, fights it should be known that unions lost almost every single time for a century before this.