What Will the Constitutional Challenge to the NLRB Do?

The most likely outcome of the current constitutional challenge to the National Labor Relations Board is not that the Supreme Court will destroy the agency — it’s that the board will be unable to operate in many states while the litigation is proceeding.

National Labor Relations Board As It Proposes To Make Student Workers Ineligible to Unionize

A hearing room at the headquarters of the National Labor Relations Board in Washington, DC, on September 30, 2019. (Andrew Harrer / Bloomberg via Getty Images)


Last week, a federal district court in Texas preliminarily enjoined the National Labor Relations Board (NLRB) from initiating an administrative proceeding against SpaceX on the grounds that removal protections for the agency’s administrative law judges (ALJs) and five board members are unconstitutional. Put simply, the agency’s current structure is unconstitutional because it contains rules that make it too difficult for the president to fire the ALJs and board members.

As with most constitutional law, the underlying legal question here turns upon impossibly vague text. Specifically, the question is whether the Article II requirement that the president “shall take Care that the Laws be faithfully executed” means that the president must retain the power to fire, at will, certain kinds of administrative agency officials. The idea that this bit of constitutional text provides a clear answer to a question as precise as the one being raised is obviously absurd, and so the resolution of the case will depend on the political views of the judges, including their opinions on the unitary executive theoryjudicial restraint, and the utility of federal labor law.

There are basically three possible outcomes to the eventual Supreme Court decision in this case, each with different practical implications.

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