Administrative law isn’t usually marketed as a thriller. There are no car chases, no plot twists, and
the villains mostly wear sensible shoes. And yeton August 19, 2025, the U.S. Court of Appeals for
the Fifth Circuit delivered a genuine “wait, they did what?!” moment for labor law watchers by
holding that the National Labor Relations Board’s current setup is likely unconstitutional in
two key ways.

The headline version: the Fifth Circuit said the legal protections that keep certain NLRB officials
(Board members and administrative law judges) from being removed at will by the President probably
violate the Constitution’s separation of powers. The practical version: the court kept in place
injunctions that paused three ongoing NLRB unfair labor practice casesmeaning those employers
didn’t have to keep litigating in the NLRB forum while their constitutional challenge proceeds.

If you’re an employer, a union, an HR leader, or anyone who has ever had to Google “What is an ALJ?”
at 11:47 p.m., this decision matters. It also lands in the middle of a bigger, years-long legal
argument about how much “independent” independent agencies are allowed to be.

What the Fifth Circuit Actually Decided (No, It Didn’t “Abolish” the NLRB Overnight)

Let’s start with the most important word in the title: likely. The Fifth Circuit’s
ruling came in the context of preliminary injunctionsa stage where courts decide
whether to temporarily pause something while the merits get sorted out. So the court wasn’t issuing
a final judgment that permanently wipes out the NLRB. Instead, it held the employers had shown a
strong chance of winning their constitutional claims and that it would be unfair (and unlawful) to
force them to proceed in a tribunal the court viewed as constitutionally defective.

In the consolidated appeals, the Fifth Circuit affirmed injunctions that halted NLRB proceedings
against three employers: SpaceX, Energy Transfer (through its
subsidiary La Grange), and Aunt Bertha d/b/a Findhelp. The court concluded federal
courts had jurisdiction to intervene and that both the removal protections for NLRB ALJs
and NLRB Board members were likely unconstitutional.

NLRB 101: How the Agency Is Built (And Why Structure Became the Main Event)

The NLRB enforces the National Labor Relations Act (NLRA), which governs many private-sector labor
rightsthings like organizing, collective bargaining, and certain employer/union conduct. In the
classic NLRB pipeline, a charge is investigated by the agency; if the agency believes the charge
has merit, the NLRB’s prosecutorial side issues a complaint; then the dispute is litigated before
an administrative law judge (ALJ). The ALJ issues a decision, and the NLRB’s
five-member Board can review it. After that, the losing side can seek review in a
federal court of appeals.

Structurally, the NLRB is split into two main parts:

• Prosecutorial/investigative arm, led by the General Counsel (a presidential appointee).
• Adjudicatory/policymaking Board, a five-member panel of presidential appointees.

So far, so bureaucratic. The controversy comes from how insulated some of these officials are from
presidential removal. Congress built many “independent” agencies with some form of for-cause
protection, meaning a President can’t remove certain officials just because the vibes are off.
Historically, that insulation was thought to support independence and stability. Recently, a
growing line of cases has questioned whether insulation goes too far when officials exercise
significant executive power.

The Cases That Sparked the Ruling: Why These Employers Sued

All three employers were facing NLRB unfair labor practice proceedings. Each went to federal court
and argued, in essence: “You can’t make us litigate in an agency forum that’s structured in a way
that violates the Constitution.”

SpaceX

SpaceX challenged an NLRB case alleging unfair labor practices and sought to block the in-house
proceeding, arguing the agency’s structure prevents meaningful presidential oversight.

Energy Transfer (La Grange)

Energy Transfer’s subsidiary, La Grange, faced an NLRB complaint tied to an employee charge.
It sought similar relief, focusing heavily on ALJ removal protections.

Aunt Bertha / Findhelp

Findhelp faced a consolidated complaint alleging multiple unfair labor practices, and it also
moved to stop the administrative case while its constitutional challenge played out.

In each lawsuit, the immediate ask wasn’t “end labor law.” It was: “pause our case, because the
tribunal itself is constitutionally suspect.”

The Constitutional Core: Removal Power, Article II, and Who Actually Runs the Executive Branch

The Fifth Circuit’s reasoning lives in a family of cases about Article II of the
Constitution and the President’s duty to “take care” that laws are faithfully executed.
Translation: if someone is exercising executive power, the President must have enough control
to supervise that power, including (at least in many situations) the ability to remove the person
doing it.

The court targeted two categories of removal protections:

• NLRB ALJs, who preside over agency trials and issue decisions.
• NLRB Board members, who review ALJ decisions and set policy through adjudication.

Why the Court Said ALJ Removal Protections Are Likely Unconstitutional

The Fifth Circuit viewed NLRB ALJs as “inferior officers” exercising significant authority. The
constitutional problem wasn’t that ALJs exist; it was how hard they are to remove.

The court emphasized a “two layers” issue:

1. An ALJ can be removed only for good cause (and typically through a Merit Systems Protection Board process).
2. The officials overseeing that process also have removal protections, creating multiple buffers
   between the President and the ALJ.

In the Fifth Circuit’s view, that’s too much insulationespecially after Supreme Court and Fifth
Circuit precedent criticizing multi-layer for-cause regimes in other administrative settings.
Bottom line: if the President can’t realistically remove the official who is exercising executive
power, the chain of accountability breaks.

Why Board-Member Removal Protection Was a “Closer Call”But Still Likely Invalid

The tougher question is the five-member NLRB Board. A long-standing Supreme Court case,
Humphrey’s Executor (1935), upheld for-cause protection for certain independent-agency
commissioners (there, the FTC). That precedent has often been cited as the legal foundation for
independent multi-member commissions.

The Fifth Circuit didn’t treat Humphrey’s Executor as a blank check. It stressed that
modern courts have warned against extending that ruling to agencies that aren’t a “mirror image”
of the FTC. In its view, the NLRB’s blend of adjudicatory and policymaking powerplus the real-world
effects of its decisionspush it into territory where the President needs more direct oversight.

In plain English: the Fifth Circuit basically said, “You can’t just point at a 1935 case and call
it a day if the agency’s modern role looks and acts like a powerful executive actor.”

How Did Federal Courts Get Involved Before the NLRB Finished Its Process?

Usually, employers fight the NLRB case inside the agency first, then appeal after the Board
enters a final order. So why did these employers get a federal court to hit pause early?

The Fifth Circuit answered with two key points: jurisdiction and harm.

Jurisdiction: “This Isn’t the Kind of ‘Labor Dispute’ That Bars Injunctions”

The NLRB argued that the Norris-LaGuardia Act limits federal courts’ power to issue injunctions in
cases “involving or growing out of a labor dispute.” The Fifth Circuit rejected that as applied
here, reasoning that these lawsuits weren’t traditional employer-versus-employee injunction fights;
they were challenges to the government’s authority to run an administrative tribunal in a
constitutionally permissible way.

This issue matters beyond this case because other courts have read Norris-LaGuardia differently,
contributing to a growing divide among circuits about when (if ever) employers can short-circuit
the NLRB process with a federal lawsuit.

Irreparable Harm: The Injury Is “Having to Show Up” to an Unlawful Tribunal

Courts don’t grant injunctions just because a party is annoyed, inconvenienced, or forced to buy
more legal pads. The party must show “irreparable harm”the kind of injury that can’t be fixed later.

The Fifth Circuit held that being forced into proceedings before an unconstitutionally structured
agency is an immediate harm. The logic is simple (and a little savage): by the time you get a final
order to appeal, you’ve already had to go through the allegedly unlawful process. That’s like
saying, “Sure, you can complain about the broken elevatorafter you’ve climbed 40 flights of stairs.”

Not everyone agreed. A dissenting judge argued the employers hadn’t shown enough specific harm
beyond the general burden of litigation. That disagreement tees up another issue higher courts may
eventually need to resolve: how much “extra” harm must a party prove when the claim is structural
constitutional injury?

What Happens Next: Severability, Appeals, and a Possible Supreme Court Showdown

The Fifth Circuit’s decision keeps the injunctions in place while the underlying cases continue.
That means a few things are now on the menu:

• Further litigation on the merits: a final judgment could expand, narrow, or
  reshape the remedy.
• Severability arguments: even if removal protections are unconstitutional, a court
  could attempt to “sever” (remove) the offending provisions and leave the rest of the statute and
  agency functioning.
• More circuit splits: other circuits have already shown a willingness to rule
  differently on whether courts can hear these challenges midstream.
• Supreme Court review: the growing splitplus the high stakes for federal labor
  enforcementmakes Supreme Court involvement increasingly likely.

A key complication is that these constitutional fights are happening alongside other litigation
about removal protections and independent agencies more broadly, including disputes involving NLRB
leadership and quorum issues. In other words: even if you don’t care about administrative law,
administrative law is currently very interested in you.

Practical Implications for Employers: What to Do (Besides Panic-Scrolling Headlines)

If you’re an employer facing an NLRB chargeor you just like to be preparedhere are grounded
takeaways:

1) Don’t Assume the NLRB Is “Shut Down”

The Fifth Circuit decision is not a nationwide off-switch. It’s a powerful signal, and it changes
strategy in Fifth Circuit territory, but NLRB regional offices still investigate charges and the
broader legal system is still sorting out remedies.

2) Venue and Timing Suddenly Matter More

The path to an injunction depends heavily on where the dispute is litigated and how courts in that
region interpret Norris-LaGuardia, administrative review rules, and constitutional standing.

3) Preserve Evidence and Treat the Underlying Labor Dispute Seriously

Constitutional litigation can pause a proceeding, but it doesn’t magically erase the facts. If the
case eventually restarts (or shifts forums), your documentation and internal consistency will still
matter.

4) Expect Leverage Shifts in Settlement Talks

When one side can credibly pause the forum, settlement dynamics change. For some employers, that
creates breathing room. For others, it prolongs uncertainty. Either way, the negotiation table may
get more… creative.

What Unions and Employees Should Watch: Rights Don’t Vanish, But Process Can Stall

For employees and unions, the biggest immediate risk is delay. When proceedings are paused, the
timeline for remedies stretches, and organizing momentum can be affected by uncertainty.

Still, it’s important to separate rights from remedies:

• The NLRA’s core protections remain on the books.
• The fight is about who can adjudicate disputes and under what constitutional constraints.
• If courts ultimately “sever” removal protections rather than dismantle the system, the NLRB could
  keep operatingjust with officials more directly removable by the President.

Practically, unions and worker advocates may focus on parallel strategies: public campaigns,
bargaining pressure, alternative legal forums where available, and documenting retaliation or
interference carefully while the federal courts argue about structure.

The Bigger Picture: Independent Agencies Are in the Hot Seat

This Fifth Circuit ruling fits into a broader legal trend: more skepticism toward insulating
officials who exercise executive power from presidential control. Courts have increasingly asked
whether agency leaders (or adjudicators) can be protected from removal while still making decisions
that look and feel like executive enforcement.

The NLRB is a particularly intense test case because it combines:

• High-impact decisions affecting workplaces nationwide
• In-house adjudication with ALJs and internal appellate review
• Longstanding assumptions about independence dating back to the New Deal era

So even though the fight is framed as “structure,” the consequences are very real: how quickly
labor disputes are resolved, how predictable enforcement is, and how much politics can directly
influence adjudication.

FAQ: The Questions Everyone Asks After Reading the Headline

Does this mean the NLRB is unconstitutional everywhere?

No. This is a Fifth Circuit decision in the context of preliminary injunctions, and other circuits
have approached similar challenges differently. The legal landscape is fragmented and still evolving.

Can employers now automatically stop NLRB cases?

Also no. The ruling makes it easier in the Fifth Circuit to argue for an injunction, but it doesn’t
erase the legal standards courts apply. Venue, timing, and the specific claims still matter.

What’s the most likely “fix” if the Supreme Court agrees there’s a problem?

One possibility is severability: removing the “for-cause” protection while leaving the NLRB’s
broader authority intact. Another possibility is a narrower ruling focused on ALJs rather than Board
membersor vice versa. Courts often aim for the least disruptive remedy that still cures the
constitutional defect.

Should anyone ignore an NLRB charge or complaint because of this?

Definitely not. Deadlines, preservation duties, and strategic consequences don’t disappear. Even if
proceedings are paused, your choices now can shape outcomes later.

Experiences From the Front Lines: What This Uncertainty Feels Like in Real Workplaces (About )

Legal rulings about “removal protections” can sound abstractlike a debate about whether a stapler
belongs in the top drawer or the second. But for people living inside an active labor dispute, this
kind of decision shows up in very concrete, very human ways.

For in-house counsel and HR teams, the experience often starts with whiplash.
One day you’re preparing witnesses, collecting emails, and mapping a hearing strategy. The next
day you’re adding a second track: a federal lawsuit arguing the entire forum should be paused. That
creates a strange double realityyour team has to behave as if the administrative hearing is both
imminent and possibly frozen. It’s like planning a wedding while simultaneously auditioning
for a reality show called “Surprise Venue Change.”

For managers, the uncertainty can be even messier. Managers are often told,
correctly, not to talk about ongoing litigation. But day-to-day operations don’t stop. People still
ask questions. Team chats still happen. The “right” communication becomes a narrow path: be calm,
avoid retaliation, don’t overpromise, don’t threaten, don’t joke about unions (seriously), and don’t
invent new policies in a panic. In many workplaces, this is when training gets refreshedsometimes
because leadership wants to do the right thing, and sometimes because someone realized “we really
should not have said that in a Slack channel.”

For employees and union organizers, the experience can feel like someone hit the
slow-motion button. Traditional NLRB timelines can already be frustrating; adding a constitutional
detour can make it feel like the process is moving at the speed of a committee deciding where to
order lunch. That delay can affect momentum, especially when an organizing drive depends on
consistent engagement and trust. People may wonder: “If the case is paused, does that mean we lost?”
or “Does this mean nothing is enforceable?” The practical work becomes partly educationalexplaining
that the rights being asserted haven’t evaporated, but the forum and timeline are under pressure.

For outside lawyers on both sides, the day-to-day experience is often strategic
triage. Which deadlines still run? What evidence needs preservation even if the hearing pauses?
Should negotiations continue in parallel? Do you advise a client to lean into settlement while the
forum is uncertain, or do you hold position and treat the pause as leverage? The answer varies, and
it changes depending on jurisdiction. A national employer may face one reality in the Fifth Circuit
and a completely different one elsewhereleading to a patchwork strategy that’s hard to explain to
non-lawyers and even harder to budget for.

And then there’s the psychological costthe part that rarely shows up in case
captions. Uncertainty eats attention. It turns routine decisions into “what-if” exercises. It can
strain relationships between leadership and staff, and it can test whether workplace culture is
sturdy or mostly decorative. One of the most common “experienced” outcomes in periods like this is
a renewed focus on basics: clear policies, consistent discipline, documented performance coaching,
respectful communication, and leadership behavior that doesn’t accidentally become Exhibit A.

In other words, while courts debate constitutional architecture, the people inside workplaces are
living the practical version: delayed timelines, shifting leverage, and the constant challenge of
keeping things fair and functional while the rulebook is being argued over in real time.