As we have previously reported, the National Labor Relations Board has been increasingly active in recent years. However, recent litigation filed in Texas by SpaceX attacked the powers and structure of the NLRB itself.
SpaceX argues that NLRB proceedings violate the U.S. Constitution because the Board’s structure violates separation of powers insofar as:
- the NLRB’s five members are unconstitutionally insulated from removal by the president in violation of Article II because they cannot be removed without cause and
- the NLRB’s administrative law judges are unconstitutionally insulated from removal by the President by at least two layers of removal.
Late last month, the Western District of Texas issued a preliminary injunction in favor of SpaceX, holding that SpaceX demonstrated a substantial likelihood of success on its constitutional claims. This follows on the heels of the Fifth Circuit granting SpaceX’s request for injunction to block NLRB administrative proceedings based on similar arguments.
Stay tuned as these cases could have major ramifications for the NLRB’s abilities to enforce labor laws.