Law360: UC Law professor weighs in on National Labor Relations Board case

Professor Anne Lofaso, University of Cincinnati College of Law, recently spoke with Law360 about a case that challenges the structure of the National Labor Relations Board (NLRB). This challenge is a key test of the agency’s constitutionality and has the potential of ending up before the U.S. Supreme Court.

SpaceX and two other companies have asked the United States Court of Appeals for the Fifth Circuit to uphold three injunctions Texas federal judges issued in 2024 that prevent the NLRB from pursuing unfair labor practice cases against them after finding the board’s structure was likely unconstitutional. Foundational to these cases is the theory that the agency’s administrative law judges and members are unconstitutionally insulated from being fired by the president.

The case could impact the NLRB’s ability to prosecute labor law violations, with potentially larger ramifications depending on the court’s decision and whether or not the U.S. Supreme Court takes up an appeal.

Professor Lofaso told Law360 that "It [the case] would thwart the board in any jurisdiction that seems to be friendly to this argument. … Larger corporations with national footprints would be able to take advantage of a ruling to thwart board actions more easily than smaller businesses with more limited operations.”

Further, “a ruling against the board would likely end up at the Supreme Court, and while it would disrupt the board in the short term, it could ultimately be fixed by striking the removal protections from the NLRA. The more difficult ruling to remedy would be if the Fifth Circuit held that the Norris-LaGuardia Act does not bar such suits, because it would make room for similar challenges that would handcuff the board.

"There are ways to fix the [NLRA] on the constitutional issues," Lofaso said. "But the injunctive ones? Much harder. You'd have to have an act of Congress."

Read the entire story here (paywall): 5th Circuit to Weigh NLRB Constitutionality in High-Stakes Case