Understanding the Latest Constitutional Attacks on the NLRB

[Omaha Steve]

January 30, 2024

By John Fry

John Fry is a student at Harvard Law School.

SpaceX and Trader Joe’s are attacking the constitutionality of the NLRB. While their arguments may be novel, their strategy is not. After the Wagner Act’s passage in 1935, employers across the country openly flouted the law, arguing that it was unconstitutional. They had reason to think the Supreme Court might agree: it had previously struck down wage and hour laws and defended yellow-dog contracts in the name of the Constitution. More recently, the Court had stymied President Roosevelt’s early attempts to regulate labor relations by voiding the National Industrial Recovery Act. But the Lochner era drew to a close after Roosevelt’s threats to pack the Court, and the justices finally upheld the NLRB’s constitutionality in 1937.

Undaunted by the many decades of intervening precedent, today’s employers are once again ignoring labor law in hopes of capitalizing on a sympathetic judiciary. It’s no secret that today’s Court is skeptical of the administrative state: it has sharply curtailed how Congress may delegate power to agencies in cases like West Virginia v. EPA, and as Jason and Darin have recently discussed, the Court may overrule Chevron this term, reducing the deference courts must afford agency decisions. Amid this anti-agency climate, employers accused of unfair labor practices such as illegally firing workers and refusing to collectively bargain are asserting the defense that the very structure of the NLRB is unconstitutional.

In 2022, a group of SpaceX employees published an open letter criticizing the erratic and offensive behavior of CEO Elon Musk. SpaceX promptly fired eight workers linked to the letter, and the NLRB subsequently issued a complaint alleging unlawful retaliation against the workers. The next day, SpaceX filed suit in the Southern District of Texas, alleging three constitutional problems with the NLRB.

First, SpaceX argues that the NLRB’s members and administrative law judges are impermissibly shielded from removal by the president. The NLRA states that the president can only fire an NLRB member for “neglect of duty or malfeasance in office.” The Supreme Court held in 1935 that Congress could create “independent” agencies led by multiple expert members who can only be removed from their positions for good cause. Even when the Roberts Court limited how agencies could be structured in Seila Law, it acknowledged the constitutionality of “expert agencies led by a group of principal officers removable by the President only for good cause.” SpaceX contends that NLRB members do not fit this description because they “exercise substantial executive power.” But according to Seila Law, examples of executive power include the imposition of punitive fines (the NLRB can only order restorative remedies, such as backpay) and the prosecution of crimes, not the judgments of bipartisan bodies of experts.

FULL story: https://onlabor.org/understanding-the-latest-constitutional-attacks-on-the-nlrb/

[justaprogressive]

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