Challenges to the NLRB are multiplying — now in front of two different appeals courts
A Fifth Circuit appeal has been pending, but now the constitutionality of the labor law enforcement agency is in front of the Sixth Circuit as well.

Chris Geidner
Sep 18, 2024



The business fight against America’s labor laws — and the agency charged with enforcing those laws — has reached new levels, as challenges to the constitutionality of the National Labor Relations Board are now in front of two federal appeals courts. ... At the end of July, I wrote about the messages the U.S. Supreme Court’s conservatives sent to far-right judges and lawyers this past term.

“Disregard precedent where you think we might do so.” “Try out previously fringe ideas.” “Give us more cases.” ... In short: “Do what you want.”

These messages, I noted, were being sent in the context of what I described as a type of “contingent” term, with next steps awaiting the election results. ... As an example of those lessons having been learned, I highlighted a July ruling from U.S. District Judge Alan Albright, a Trump appointee in the Western District of Texas. ... Albright blocked a NLRB administrative proceeding involving SpaceX from going forward because, he concluded, the NLRB’s administrative law judges are “unconstitutionally insulated from removal” and the same is true of NLRB’s members themselves.

This, I noted previously, was part of an ongoing effort to undermine, if not destroy, the NLRB — itself a part of the still broader attack on administrative agencies. Albright’s ruling was a foot in the door — giving the NLRB challengers a ruling that they could get in front of the U.S. Court of Appeals for the Fifth Circuit (where the case is on appeal now) and, if they’ll take it, the Supreme Court.

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