Constitutional Attacks on Labor Board Dwindle as Threats Remain

After a wave of lawsuits contesting the National Labor Relations Board’s constitutionality flowed into the courts last year, the rate of new challenges has slowed to a trickle during the first six months of the second Trump administration.

The NLRB was hit with 25 lawsuits in 2024 alleging elements of its structure violate the US Constitution, including complaints filed by Amazon.com Inc., SpaceX, and Waffle House Inc., according to a Bloomberg Law review of cases. But employers have sued the NLRB just three times this year, with one company dropping its lawsuit a day after filing.

The sharp reduction in constitutional challenges brought in the courts reveals a shift in employer strategy that followed the January transition from the Biden administration to the Trump administration, which triggered swift and significant changes at the NLRB.

“The lawsuits were an employer defense against the efficacy of the Biden NLRB in prosecuting unfair labor practices,” said Diana Reddy, a law professor who co-directs the Center for Law and Work at the University of California-Berkeley. “Under the new administration, the NLRB is less effective.”

President Donald Trump took away NLRB’s quorum by firing member Gwynne Wilcox shortly after his inauguration, halting the board’s ability to decide cases. He also axed Jennifer Abruzzo, the agency’s aggressively pro-labor general counsel, and tapped former Republican board member William Cowen to serve as acting GC.

Trump has nominated two candidates for open board seats and chosen a new general counsel. But his board nominees are unlikely to get Senate consideration until the fall, and his GC pick faced tough questions and criticism at a key hearing.

Meanwhile, the constitutional claims raised against the NLRB have been percolating in the federal courts—most notably the objection to board members’ removal protections, which appears headed to a US Supreme Court inclined to nullify them.

And the agency has stopped defending the constitutionality of the members’ and administrative law judges’ job safeguards, falling in line with the White House’s positions on those issues.

The changes at the NLRB and the progress of the ongoing constitutional litigation has altered the cost-benefit analysis of suing the agency, making it more attractive for employers to wait for decisions rather than filing their own lawsuits, labor law observers said.

An NLRB spokesperson declined to comment.

Lawsuits Surge, Then Wane

SpaceX took part in the early courtroom charge, filing the first lawsuit against the agency in 2024. The pace of new constitutional challenges picked up in August, after the Elon Musk-owned aerospace firm and oil-and-gas giant Energy Transfer LP won court orders blocking unfair labor practices cases against the companies.

All but one of the 30 constitutional lawsuits against the board filed since 2023 zeroed in on the the members’ firing shields. The ALJs’ job protections are the second-most common target, showing up in 25 of those complaints.

Roughly half of the suits featured claims that administrative adjudication of labor law allegations runs afoul of the Seventh Amendment’s right to a jury trial, an argument that seeks to extend the Supreme Court’s ruling in SEC v. Jarkesy beyond securities fraud cases.

About the same share of complaints raised allegations that the board members exercise executive, judicial, and legislative authority in a way that violates due process rights or the separation of powers.

Mixed Results

Constitutional lawsuits against the board have had some successes.

Trump-appointed district judges in Texas have issued four preliminary injunctions that blocked the underlying unfair labor practice cases. Judges found the four employers were likely to show that the ALJ removal shields violate the Constitution. Two of the orders also said that the company would probably prevail on its claim against the members’ tenure protection.

The Fifth Circuit also halted ULP cases against Amazon and SpaceX, but both companies failed to convince the circuit court to grant preliminary injunctions after district judges didn’t rule on their requests quickly enough.

Still, both labor board cases remain frozen. Amazon has asked for en banc review of the circuit panel’s ruling, while the NLRB sent the SpaceX case to the National Mediation Board to determine which agency has jurisdiction over the company.

Saint Vincent Hospital won a merits decision, obtaining a ruling from a Trump-appointed judge invalidating the ALJs’ job safeguards. The agency has appealed.

Judges have denied requests for preliminary injunctions in 10 cases. They’ve also dismissed 12 lawsuits for a variety of reasons, including procedural defects, settlements in the underlying administrative proceedings, and companies voluntarily giving up.

Appeals court decisions involving the constitutional lawsuits against the NLRB are pending in the Second, Third, Fifth, Sixth, Ninth, and District of Columbia circuits.

Litigating the Issues

Courts have mostly focused on the removal protection claims, headlined by the Supreme Court saying in a preliminary ruling in Wilcox’s challenge to her termination that the Trump administration is likely to show that the NLRB members’ job shields are invalid.

Texas federal courts have been fertile ground for claims against administrative law judges’ tenure protections by virtue of a Fifth Circuit ruling that job safeguards for SEC in-house judges are unconstitutional.

But the NLRB continues to fight—not by defending the constitutionality of the ALJ’s firing shields—but instead claiming that the companies haven’t shown the harm necessary to win relief.

A Republican-led NLRB could take the Seventh Amendment claim off the table by reversing its 2022 decision that standardized the practice of seeking broader worker compensation for the consequences of employers’ unfair labor practices, said Anne Lofaso, a labor law professor at the University of Cincinnati.

How courts handle the due process and separation of powers claims could come down to the Supreme Court’s reasoning when it rules on board members’ job safeguards, as the case depends in part on what types of authority they wield, said William Gould, a former NLRB chair who teaches at Stanford University.