A Federal Appellate Court Finds the NLRB to Be Unconstitutional

Summary

The National Labor Relations Act—that pillar of American democracy that gives workers the right to bargain collectively with their employers—was enacted 90 years ago this summer. Its constitutionality was upheld two years later by the Supreme Court, and no successful challenge to its constitutionality has been brought in the subsequent 88 years. Until last week, when the avowedly far-right Fifth Circuit decided otherwise. Today, the NLRA hovers somewhere between de facto and de jure nullification. It’s been slowly eroding for at least half a century, as employer resistance to it has heightened, and as the penalties to employers for violating its terms have weakened. Currently, the fact that the five-member National Labor Relations Board is down to just two members—not enough to constitute a quorum—means the Board can make no rulings. This enables employers who’ve been found to have violated workers’ rights by lower NLRB administrative courts to appeal those findings and penalties to the Board, which cannot rule on anything—essentially, giving those employers leeway to keep on doing what they’re doing, however illegal it may be. More from Harold Meyerson The Board is only down to two members because President Trump fired Biden-appointed and congressionally confirmed Board chair Gwynne Wilcox in the middle of her term, which, as for all Board members, was set by the NLRA to run for five years. Under the law, presidents had the power to remove members before their terms expire only in the event of “neglect of duty or malfeasance in office,” which Trump didn’t even allege when he fired Wilcox. In May, the Republican majority on the Supreme Court upheld Trump’s power to fire Board members at will, 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 discove...