A Federal Appellate Court Finds the NLRB to Be Unconstitutional(prospect.org)
prospect.org
A Federal Appellate Court Finds the NLRB to Be Unconstitutional
https://prospect.org/justice/2025-08-25-federal-appellate-court-finds-nlrb-unconstitutional/
39 comments
Except, all its rulings are reviewable by the courts. In judicial type cases, results can be reviewed by US Court of Appeals, and appeals courts do overrule the NLRB not infrequently. Rule making is reviewed by courts under the Administrative Procedure Act. This has been standard in the US court system historically for administrative actions at all levels, from school boards making the rules and also deciding cases involving employees and students, to the FDA and SEC for example.
Also the president has always had some power to remove board members for cause, not Congress. Congress can change the enabling statutes but only if the President signs the law (or they override the President's Veto). I'm not aware of how Congress can intercede in specific cases.
So I don't think it's actually so that the NLRB not answerable to anything but Congress.
Also the president has always had some power to remove board members for cause, not Congress. Congress can change the enabling statutes but only if the President signs the law (or they override the President's Veto). I'm not aware of how Congress can intercede in specific cases.
So I don't think it's actually so that the NLRB not answerable to anything but Congress.
Until the VERY recent Chevron ruling, that's how Congress's powers were intepreted.
The Necessary and Proper Clause (or Elastic Clause) in the Constitution grants (or granted, I guess) this power.
It's wild to think how Republicans used to complain about activist judges, but the current Federalist Society slate has undone at least 100+ years of precedent in the last half dozen.
The Necessary and Proper Clause (or Elastic Clause) in the Constitution grants (or granted, I guess) this power.
It's wild to think how Republicans used to complain about activist judges, but the current Federalist Society slate has undone at least 100+ years of precedent in the last half dozen.
> It's wild to think how Republicans used to complain about activist judges, but the current Federalist Society slate has undone at least 100+ years of precedent in the last half dozen.
Projection, as usual. When in opposition they act as if the Democrats were doing <insert evil thing>, so they can justify doing <evil thing> when they come topower, because it's "just a reaction".
Projection, as usual. When in opposition they act as if the Democrats were doing <insert evil thing>, so they can justify doing <evil thing> when they come topower, because it's "just a reaction".
[deleted]
Unless the Constitution explicitly prohibits Congress from doing a thing, Congress can do that thing. That's how the Constitution works.
Or at least prior to the nullification of Chevron, that's how it was supposed to work.
Or at least prior to the nullification of Chevron, that's how it was supposed to work.
> Unless the Constitution explicitly prohibits Congress from doing a thing, Congress can do that thing. That's how the Constitution works.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The USA constitution is explicitly the opposite unless Congress is allowed to do something it's not allowed to. Chevron has absolutely nothing to do with that.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The USA constitution is explicitly the opposite unless Congress is allowed to do something it's not allowed to. Chevron has absolutely nothing to do with that.
Chevron has everything to do with that.
"the ruling (Chevron) eventually became a target for those seeking to curtail the administrative state, who argued that courts, rather than federal agencies, should say what the law means." The judicial branch ruled to give themselves more power and congress less.
> The judicial branch ruled to give themselves more power and congress less.
The Chevron ruling being overturned takes power from the Executive effectively making Congress and the Judicial branch stronger.
The Chevron ruling being overturned takes power from the Executive effectively making Congress and the Judicial branch stronger.
>The Chevron ruling being overturned takes power from the Executive effectively making Congress and the Judicial branch stronger.
You honestly can't believe that. I wish you had a modicum of integrity, instead of being so biased and partisan. Biden's only supreme court nomination had a great quote about trump's extreme court and how it makes its own rules.
"the [extreme] Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins."
Now how does that apply to your stated opinion? When the extreme court finds something it doesn't like it won't let it stand, it will play Calvinball aka "NO FIXED RULES." It doesn't strengthen congress, it consolidates all power into the judicial branch.
I know this will get flagged because I didn't fellate you and how dare I criticize your biased and partisan extremist views. This website is like the corporate press, it normalizes extremists and makes them appear normal and sane.
Uncle thomas
You honestly can't believe that. I wish you had a modicum of integrity, instead of being so biased and partisan. Biden's only supreme court nomination had a great quote about trump's extreme court and how it makes its own rules.
"the [extreme] Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins."
Now how does that apply to your stated opinion? When the extreme court finds something it doesn't like it won't let it stand, it will play Calvinball aka "NO FIXED RULES." It doesn't strengthen congress, it consolidates all power into the judicial branch.
I know this will get flagged because I didn't fellate you and how dare I criticize your biased and partisan extremist views. This website is like the corporate press, it normalizes extremists and makes them appear normal and sane.
Uncle thomas
That is completely valid by the constitution. The judiciary is clearly still a check. The judiciary striking this down would mean that Congress has one less check on the executive, which is exactly what Project 2025 wants to install an unaccountable theocracy.
ilovecollies(2)
“A riot is the language of the unheard” -MLK
This ruling is only gonna prevent workers from being heard through the courts and legal system, at a time when workers are being more frequently fired and replaced by AI. Wildcat strikes will be more likely and other illegal activities will seem more justified. Terrible decision that will have consequences sooner or later
This ruling is only gonna prevent workers from being heard through the courts and legal system, at a time when workers are being more frequently fired and replaced by AI. Wildcat strikes will be more likely and other illegal activities will seem more justified. Terrible decision that will have consequences sooner or later
Actual decision: [1]
That is a strange piece of legal reasoning. It's derived from the theory of the unitary executive, or, as Trump says, "I can do whatever I want." Under this theory, which is relatively new, Congress cannot constrain the president much. Until recently, it was considered settled that the president can't fire most federal employees. Cabinet members serve "at the pleasure of the President", but further down, civil service employees were not fireable by political officials.
That's changed.
Until recently, it was assumed that a president who tried this stuff would be impeached. That prevented presidents from getting out of control. But Congress is too weak now to do its duty of constraining the president.
[1] https://www.ca5.uscourts.gov/opinions/pub/24/24-50627-CV0.pd...
That is a strange piece of legal reasoning. It's derived from the theory of the unitary executive, or, as Trump says, "I can do whatever I want." Under this theory, which is relatively new, Congress cannot constrain the president much. Until recently, it was considered settled that the president can't fire most federal employees. Cabinet members serve "at the pleasure of the President", but further down, civil service employees were not fireable by political officials.
That's changed.
Until recently, it was assumed that a president who tried this stuff would be impeached. That prevented presidents from getting out of control. But Congress is too weak now to do its duty of constraining the president.
[1] https://www.ca5.uscourts.gov/opinions/pub/24/24-50627-CV0.pd...
This is one of the most classically 2025 era political actions. It stems from a lawsuit originating from Elon Musk, where he fired people for criticizing him in their personal, off-work time (the legal question was if the government has the power to investigate complaints). Now the end-result is that the laws protecting workers are essentially nullified in the 5th circuit. But only the 5th circuit (Texas, Louisiana, Mississippi). This came from the famously partisan 5th circuit which is stacked with right wing activist judges - and the decision was made by 2/3 trump-appointed judges and 3/3 republican-appointed judges.
Without the legal protection of unions or even the ability to generally get strong labor protections, it’s likely that society will be forced to renegotiate how labor protections and bargaining will work, or provide new laws to govern it. The idea that unions and collective bargaining will just be over is a fantasy of the mega corp CEOs. Either we’ll see a future SCOTUS revive the laws and board, or it’s yet another institution that needs to be rebuilt post trump/project-2025.
Without the legal protection of unions or even the ability to generally get strong labor protections, it’s likely that society will be forced to renegotiate how labor protections and bargaining will work, or provide new laws to govern it. The idea that unions and collective bargaining will just be over is a fantasy of the mega corp CEOs. Either we’ll see a future SCOTUS revive the laws and board, or it’s yet another institution that needs to be rebuilt post trump/project-2025.
> It stems from a lawsuit originating from Elon Musk, where he fired people for criticizing him in their personal, off-work time.
Workers certainly have the right to quit based on Elon Musk's off-work comments. Why should Musk have less right to free association? If my gardener keeps calling me an asshole even when he's not working for me, should I need a separate justification to fire him? How many people could I hire without losing my freedom to associate?
Workers certainly have the right to quit based on Elon Musk's off-work comments. Why should Musk have less right to free association? If my gardener keeps calling me an asshole even when he's not working for me, should I need a separate justification to fire him? How many people could I hire without losing my freedom to associate?
Bad analogy. Gardeners are not typically w2 employees, and domestic servants are excluded from the NLRA anyway. If you're talking about a gardener at your hotel where you are the manager, then yeah they should be able to complain about how your bad behavior impacts their work and the business.
> Workers certainly have the right to quit based on Elon Musk's off-work comments. Why should Musk have less right to free association?
I think we need to stop pretending that some random Joe and the richest man on earth are an apples to apples comparison. It's pretty clear that individual rights that are fine when exercised by a regular person with regular-person power can turn into tyranny when exercised by someone with extraordinary power.
To given an extreme example to prove the point: the First Amendment would be dead letter if extremely wealthy person were allowed to control all the businesses in the country and was allowed to fire anyone who criticized him on their personal time.
Musk is the richest man on Earth, he should have extra constraints on his behavior, due the the power his wealth gives him.
I think we need to stop pretending that some random Joe and the richest man on earth are an apples to apples comparison. It's pretty clear that individual rights that are fine when exercised by a regular person with regular-person power can turn into tyranny when exercised by someone with extraordinary power.
To given an extreme example to prove the point: the First Amendment would be dead letter if extremely wealthy person were allowed to control all the businesses in the country and was allowed to fire anyone who criticized him on their personal time.
Musk is the richest man on Earth, he should have extra constraints on his behavior, due the the power his wealth gives him.
Power. We passed laws creating labor protections because we recognized that labor has a power imbalance with the bosses and that prior to federal protections this turned into straight up violence (bosses literally machine-gunning down labor protestors).
The law does not need to be context-agnostic.
The law does not need to be context-agnostic.
> Workers certainly have the right to quit based on Elon Musk's off-work comments. Why should Musk have less right to free association?
Nobody is disputing Musk’s right to quit if he doesn’t like his workers’ comments.
Nobody is disputing Musk’s right to quit if he doesn’t like his workers’ comments.
>If my gardener keeps calling me an asshole even when he's not working for me
It is a true factual statement, leon is an asshole. Also, since when does leon's freedoms trump mine? leon's free association gains precedent over my freedom of speech?
Where does it stop? Let's say I associate myself with a religion that leon doesn't like. You know the one that leon likes to salute in public. leon's free association gains precedent over my freedom of religion, too?
It is a true factual statement, leon is an asshole. Also, since when does leon's freedoms trump mine? leon's free association gains precedent over my freedom of speech?
Where does it stop? Let's say I associate myself with a religion that leon doesn't like. You know the one that leon likes to salute in public. leon's free association gains precedent over my freedom of religion, too?
We need Congress to nullify this "unitary executive" noise, fully.
This mistake with Trump and others like him cannot be allowed to happen again.
This mistake with Trump and others like him cannot be allowed to happen again.
From another source [1]:
> The Fifth Circuit found that the ALJ’s safeguards are unconstitutional, and the members’ shields are likely unconstitutional... [Despite] the US Supreme Court’s decision in Humphrey’s Executor v. US, a 90-year-old precedent that has long supported the restrictions Congress imposed on the president’s power to dismiss independent agency officials.
And back to TFA:
> Under the still-novel theory of the unitary executive, which holds that the federal agencies that Congress established and presidents signed into law to be independent of presidential power, save only the power to appoint their leaders, are now in violation of the newly discovered right of presidents to completely control these agencies.
It's worth noting that the NLRB is already clinging on with life support. Trump has intentionally (illegally) fired and neglected to replace 3 members now, leaving only 2 acting chairs. This doesn't meet quorum requirements for decision-making, leaving the full appeals process legally impossible to complete and businesses essentially free to violate labor law without fear of consequence until the NLRB is restored.
With this ruling, we may be seeing the final blows dealt to the NLRB, and a signal that companies need not even fear later reprisal.
[1] https://news.bloomberglaw.com/daily-labor-report/spacex-keep...
> The Fifth Circuit found that the ALJ’s safeguards are unconstitutional, and the members’ shields are likely unconstitutional... [Despite] the US Supreme Court’s decision in Humphrey’s Executor v. US, a 90-year-old precedent that has long supported the restrictions Congress imposed on the president’s power to dismiss independent agency officials.
And back to TFA:
> Under the still-novel theory of the unitary executive, which holds that the federal agencies that Congress established and presidents signed into law to be independent of presidential power, save only the power to appoint their leaders, are now in violation of the newly discovered right of presidents to completely control these agencies.
It's worth noting that the NLRB is already clinging on with life support. Trump has intentionally (illegally) fired and neglected to replace 3 members now, leaving only 2 acting chairs. This doesn't meet quorum requirements for decision-making, leaving the full appeals process legally impossible to complete and businesses essentially free to violate labor law without fear of consequence until the NLRB is restored.
With this ruling, we may be seeing the final blows dealt to the NLRB, and a signal that companies need not even fear later reprisal.
[1] https://news.bloomberglaw.com/daily-labor-report/spacex-keep...
This is the best comment thus far outlining what’s actually going on versus what’s clickbait.
It’s a constructive demolition of the institution not by a single Appeal’s Court judgement (there’s still SCOTUS, after all), but by exploiting the weakness inherent in its original designs. This is a tactic we’ll continue to see because Congress has steadfastly refused to remove or address these institutional weakpoints throughout government for half a century, on purpose.
The entire point was to tear down anything impeding Capital and enriching labor, regardless of the long-term consequences. That’s succeeding at present, but the bill inevitably comes due, and historically these sorts of personal enrichment schemes at the expense of the masses end in violence and result in a regional or global dark age; I do not expect this time to be any different.
It’s a constructive demolition of the institution not by a single Appeal’s Court judgement (there’s still SCOTUS, after all), but by exploiting the weakness inherent in its original designs. This is a tactic we’ll continue to see because Congress has steadfastly refused to remove or address these institutional weakpoints throughout government for half a century, on purpose.
The entire point was to tear down anything impeding Capital and enriching labor, regardless of the long-term consequences. That’s succeeding at present, but the bill inevitably comes due, and historically these sorts of personal enrichment schemes at the expense of the masses end in violence and result in a regional or global dark age; I do not expect this time to be any different.
Everything from the comment is in the article itself.
>With this ruling, we may be seeing the final blows dealt to the NLRB, and a signal that companies need not even fear later reprisal.
This is great news, actually. If Trump is going to debase the National Labor Relations Act by nullifying it's practicability, then that also undoes the social contract created in Taft-Hartley. So, fuck it. Ladies and gentlemen, secondary strikes and wildcat strikes are back on the menu.
https://en.m.wikipedia.org/wiki/Solidarity_action
https://en.m.wikipedia.org/wiki/Wildcat_strike
Full on, unbridled, class war now seems to be the desired outcome of this administration. A time for throwing away the kid gloves and brandishing the brass knuckles again. Capital needs a reminder that greenbacks do not, in fact, make you any better than anyone else. You are still human, with all that entails, and if you piss off the rest of the population enough, there is nowhere left to hide.
Oh, but dearest me, shouldn't get so riled up in polite company. Pip pip cheerio.
This is great news, actually. If Trump is going to debase the National Labor Relations Act by nullifying it's practicability, then that also undoes the social contract created in Taft-Hartley. So, fuck it. Ladies and gentlemen, secondary strikes and wildcat strikes are back on the menu.
https://en.m.wikipedia.org/wiki/Solidarity_action
https://en.m.wikipedia.org/wiki/Wildcat_strike
Full on, unbridled, class war now seems to be the desired outcome of this administration. A time for throwing away the kid gloves and brandishing the brass knuckles again. Capital needs a reminder that greenbacks do not, in fact, make you any better than anyone else. You are still human, with all that entails, and if you piss off the rest of the population enough, there is nowhere left to hide.
Oh, but dearest me, shouldn't get so riled up in polite company. Pip pip cheerio.
[deleted]
I think no matter how you look at the constitution it's seems wild to think Congress can create such an entity that's not answerable to anything but Congress.