/>iOn August 19, 2025, the Fifth Circuit upheld injunctions barring the National Labor Relations Board (“NLRB” or the “Board”) from prosecuting unfair labor practice cases against SpaceX and two other companies. In its decision, a three-judge panel found the removal protections that federal labor law grants NLRB members and NLRB administrative law judges (“ALJs”) likely violate the U.S. Constitution. The Fifth Circuit emphasized that being subjected to proceedings by unconstitutionally insulated officers constitutes irreparable harm, leading to preliminary injunctions blocking the NLRB cases.
SpaceX and two other companies sued to block NLRB cases against them. When doing so, each alleged the NLRB’s structure is unconstitutional; specifically including the limits on the President’s ability to fire Board members and ALJs. The arguments presented by SpaceX point to language in the National Labor Relations Act (“NLRA”) that only allows the President to fire Board members before the end of their five-year terms for “neglect of duty or malfeasance in office.” Similarly, the President can only remove Board ALJs for “good cause” after a hearing before the Merit Systems Protection Board.
This limit on Presidential removal power stems from the 1935 Supreme Court case Humphrey’s Executor v. U.S., 295 U.S. 602 which allowed Congress to enact statutory requirements for the President to remove officers of certain types of independent agencies, including the NLRB.
SpaceX is not alone in challenging longstanding Supreme Court precedent. In January, President Trump set up a challenge to Humphrey’s Executor by firing NLRB member Gwynne Wilcox. Wilcox challenged her firing, and after traveling through the U.S. Court of Appeals for the District of Columbia, the Supreme Court in May paused an order reinstating her to the Board. The Supreme Court’s decision suggested that President Trump would show that he had the constitutional authority to fire Wilcox, which the Fifth Circuit cited in its SpaceX decision.
The Fifth Circuit found that both the ALJ’s safeguards and the Board members’ shields are likely unconstitutional. The Fifth Circuit distinguished the broad powers currently held by modern Board members from the limited authority the Supreme Court originally considered in Humphrey’s Executor. These powers included the authority for Board members to determine bargaining units, set representation elections, adjudicate unfair labor practice charges, and to seek enforcement in federal court. “Admittedly, the merits question for Board Members’ removal protections is a closer call than for ALJs,” the Fifth Circuit said. “But both the Supreme Court and this circuit have declined to extend Humphrey’s Executor to agencies that are not a ‘mirror image’ of the FTC.”
The Fifth Circuit’s decision in favor of SpaceX is the latest judicial ruling tipping the scales towards the executive branch, and away from the legislative branch and administrative agencies. The five-member Board has been frozen without a quorum and unable to issue decisions since President Trump fired Wilcox in January. A final decision from the Supreme Court in the Trump v. Wilcox matter remains pending, but the 6-3 decision reached in May suggests where the Supreme Court may be heading. That decision will undoubtedly impact the structure and force of the NLRB moving forward. We will continue to monitor future developments on our blog. Employers with questions about how the decision affects them and what constitutional challenges they may raise in pending unfair labor practice cases should consult experienced labor counsel.
