The Attack on the NLRB

The National Labor Relations Act — the Wagner Act, 1935 — created the most consequential labor protection in American history. It gave private-sector workers the federal right to organize without being fired for it, to vote for union representation without employer interference, and to bargain collectively for wages and working conditions. The National Labor Relations Board (NLRB) is the agency that enforces it.

The NLRB investigates unfair labor practice (ULP) charges — the formal legal term for retaliating against workers for organizing. It certifies union elections. It issues bargaining orders when employers refuse to recognize the outcome of a legal vote. It is the only federal body with jurisdiction over these functions. Approximately 80 million private-sector US workers fall under its protection.

This is what the campaign is designed to destroy. Not hobble. Not reform. Destroy — by having federal courts declare the agency's very structure unconstitutional and strip it of the authority to hear cases. If they succeed and Congress does not rebuild the agency (it will not), workers who organize are back to pre-1935 conditions: fire them, and the federal government has no apparatus to respond.

On June 27, 2024, the Supreme Court decided Securities and Exchange Commission v. Jarkesy 6-3. The case concerned whether the SEC could use its own in-house administrative law judges (ALJs) to adjudicate civil penalties for securities fraud. The Court said no: the Seventh Amendment guarantees defendants a jury trial in a real federal court when the remedy sought is "legal" in nature (civil penalties) rather than equitable (restoring the status quo).

The decision was narrow on its face — it dealt only with SEC fraud penalties. But the constitutional theory it validated was portable. NLRB ALJs adjudicate cases with legal remedies — back pay, reinstatement, civil penalties — using the same procedural structure. Within hours of the ruling, corporate lawyers were drafting briefs extending the same logic to the NLRB, FTC, OSHA, and EPA.

The NLRB became the primary target. It is the agency the largest employers in America face most often, the one they lose to most often, and the one that stands between their workforce and organized labor. A ruling that the NLRB cannot adjudicate its own cases would paralyze enforcement entirely.

In January and February 2024 — before *Jarkesy* was even decided — four of the largest employers in America filed constitutional challenges to the NLRB in rapid succession:

• SpaceX filed January 4, 2024 — one day after the NLRB General Counsel issued a complaint alleging SpaceX had unlawfully fired eight engineers who circulated an open letter criticizing CEO Elon Musk.
• Trader Joe's filed January 18, 2024, as NLRB ULP charges accumulated across multiple stores where workers had organized into Trader Joe's United.
• Amazon filed in February 2024 — facing bargaining-order proceedings after the Amazon Labor Union's historic 2022 election victory at the JFK8 Staten Island warehouse.
• Starbucks joined the constitutional challenge as Workers United organizing reached 400+ stores.

All four advanced substantially identical constitutional arguments. All filed within six weeks. All shared the same legal infrastructure: US Chamber of Commerce amicus support, Federalist Society-affiliated counsel, and alignment with Project 2025's explicit agenda to weaken the NLRB.

NLRB General Counsel Jennifer Abruzzo called the companies "lawbreakers" attempting to use constitutional litigation to escape accountability for their violations. She was fired by President Trump eleven months later.

SpaceX's initial filing was not random. The Brownsville division of the Southern District of Texas is a known venue for strategic litigation: a single judge, appointed by a Republican president, handles every case. The plaintiff knows in advance who will rule. This is the same playbook used to engineer the mifepristone ruling in Amarillo (Judge Matthew Kacsmaryk, one judge in his division), and the same structure that produced a string of administrative-state rulings in favorable Texas courts.

The NLRB fought the venue and won — the case was transferred to the Central District of California. SpaceX appealed. The Fifth Circuit en banc voted 8-8, refusing to block the transfer. In a dissent, Judge Edith Jones accused the NLRB of "forum shopping" for advocating the transfer — a remarkable inversion, given that SpaceX filed the case in a known strategic venue to begin with.

The venue fight was a preview of the larger strategy: these cases are designed to reach the most favorable courts at every stage. Single-judge divisions for initial filing. Fifth Circuit panels for appeals. And a Supreme Court, reshaped by three Federalist Society-vetted Trump appointments, for the final ruling.

On August 19, 2025, the Fifth Circuit of Appeals upheld three preliminary injunctions blocking the NLRB from pursuing unfair labor practice charges against SpaceX, Energy Transfer, and Findhelp. The ruling concluded that the NLRB's dual removal protections — for both ALJs and Board Members — "likely violate Article II of the Constitution."

This was the first circuit court of appeals to declare the NLRB's structure "likely unconstitutional." The ruling's logic: NLRB ALJs are "inferior officers" under the Constitution, and the "two layers of for-cause protection" shielding them from presidential removal is per se unconstitutional under the precedent established in Free Enterprise Fund v. PCAOB (2010).

The Trump administration's NLRB, led by Trump-appointed officials, chose not to appeal the ruling to the Supreme Court. This is the political logic made plain: the administration is aligned with the corporations challenging the agency it nominally runs. The agency that is supposed to protect 80 million workers is being dismantled by the executive branch that controls it.

The AFL-CIO and the Office and Professional Employees International Union (OPEIU) — not parties to the original case — petitioned the Supreme Court to allow them to intervene and seek review. The administration that was supposed to defend the agency was not doing so.

The constitutional litigation was one prong. The administrative destruction was another.

On January 27, 2025, Trump fired NLRB General Counsel Jennifer Abruzzo — the official who called the companies "lawbreakers" — and removed Board Member Gwynne Wilcox from the five-member Board. Wilcox's removal was the first time in the NLRB's 90-year history that a president had fired a sitting Board member. The NLRB statute says Board members can only be removed "for neglect of duty or malfeasance in office." Trump did not allege either; he simply removed her.

With only two members remaining, the Board fell below the three-member quorum required to issue decisions. For 345 days in 2025 — essentially the entire year — the NLRB could not certify elections, adjudicate ULP complaints, or issue orders. The agency was functionally suspended without a court order, through the simple expedient of firing enough members to break the quorum.

The quorum was restored only on December 18, 2025, when the Senate confirmed three Trump nominees. The "restored" NLRB is now staffed by the appointments of the same administration aligned with the companies challenging the agency's existence.

In 2022, eight SpaceX engineers circulated an open letter among colleagues describing Elon Musk's public conduct — the erratic tweets, the behavior — as a distraction and an embarrassment to the company. They asked SpaceX to create a respectful workplace policy. SpaceX fired all eight.

The NLRB filed a ULP complaint: firing workers for collective action is illegal under the National Labor Relations Act. SpaceX's response was not to defend the firings. It was to sue to have the agency itself declared unconstitutional, in a single-judge Texas division, on the day the complaint was issued.

On February 9, 2026, the NLRB dismissed its complaint against SpaceX. A separate federal agency — the National Mediation Board — had ruled that SpaceX falls under the Railway Labor Act because "space transport includes air travel." The NLRB has no jurisdiction. The case is over. The eight engineers who were fired in 2022 for circulating a letter have no remaining federal labor protection.

This is what the strategy achieved. Not a ruling on the merits. Not an adjudication of whether firing workers for collective action was lawful. A jurisdictional shell game that resulted in a ruling that the agency built to answer the question simply doesn't cover them.

The constitutional litigation didn't emerge from a constitutional principle. It emerged from a policy agenda. Project 2025's Mandate for Leadership 2025 — the Heritage Foundation document that organized the Trump administration's first 100 days — explicitly recommends rolling back NLRB authority and weakening collective bargaining rights. The same document recommended firing the NLRB General Counsel on day one. Trump did it on day seven.

The Federalist Society incubated the constitutional theory, vetted the judges who would hear the cases, and provided the institutional infrastructure that connected corporate plaintiffs to receptive forums. The US Chamber of Commerce filed amicus briefs supporting each suit. These are not independent actors converging on the same conclusion — they are nodes in a coordinated network with a shared goal: dismantling the federal administrative state, starting with the agencies that cost them the most money.

The *Janus v. AFSCME* decision (2018) had already eliminated agency fees in the public sector, cutting off a significant revenue stream for public employee unions. The anti-NLRB campaign is the private-sector continuation of the same project. And the Article II removal-power theory — once validated for the NLRB — applies with equal force to the FTC, CFPB, OSHA, EPA, and every other independent agency that regulates powerful interests.

The NLRB is not the end point. It is the beachhead.