Both unionized and non-unionized employers are familiar with the National Labor Relations Board’s authority to pursue and adjudicate unfair labor practice charges. Following high-profile charges brought against SpaceX and other companies, those employers filed suit to block the NLRB from hearing such claims by challenging the legality of the board’s structure. The NLRB’s governing legislation contains prohibitions against the president removing board members except for specific cause. While intended to prevent political interference with the board’s functions, the employers claimed that these removal protections violate the U.S. Constitution’s separation of powers principles by limiting the executive branch’s authority.

Last week in a 2-1 decision, the Fifth Circuit Court of Appeal agreed, concluding that the NLRB’s structure is likely unconstitutional, upholding injunctions against the board proceeding with unfair labor practice charges against the challenging employers. The court distinguished U.S. Supreme Court precedent from the 1930’s rejecting challenges to the constitutionality of the Federal Trade Commission and a 2024 case similarly holding that the Consumer Products Safety Commission was constitutionally organized, noting the NLRB’s authority to directly sanction employers. The dissenting judge concluded that the NLRB’s authority over employers is similar to those other agencies with removal protections deemed lawful.

This decision is by no means the end of challenges to the NLRB’s authority. The Supreme Court recently lifted an injunction preventing President Donald Trump from removing a NLRB member without cause, and the final opinion in that case will likely influence the appeal of the Fifth Circuit’s decision. If the NLRB is found to be unconstitutional, this could result in a cessation of unfair labor practice charges, investigations and determinations unless Congress amends the agency’s underlying legislation to eliminate the removal protections.

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