The Fifth Circuit Ruled That the NLRB Is Unconstitutional
The Fifth Circuit Court of Appeals sided with SpaceX earlier this week, ruling that the National Labor Relations Board’s current structure is unconstitutional. The decision will keep the agency hamstrung until the case makes its way to the Supreme Court.
The US Court of Appeals for the Fifth Circuit has affirmed preliminary injunctions halting NLRB proceedings against three employers, including Elon Musk’s SpaceX. (Brandon Bell / Getty Images)
For the last year or so, federal district court judges in the Fifth Circuit have been enjoining the National Labor Relations Board (NLRB) from processing unfair labor practice charges against employers in Texas, Louisiana, and Mississippi. I’ve written a couple of pieces about this including this one in September of last year.
These decisions are all downstream of the “unitary executive” theory popular in conservative legal circles. The legal argument goes as follows:
Article II of the US Constitution requires that the president “shall take Care that the Laws be faithfully executed.”
The president cannot do so with respect to the NLRB because the NLRB members and administrative law judges (ALJs) are too difficult to fire.
Thus, the NLRB’s current structure is likely unconstitutional and it would cause irreparable harm to these employers to be subject to NLRB administrative processes.
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