So
long
labor
rights,
we
hardly
knew
ye.
Today
the
Fifth
Circuit
issued
a
decision
neutering
the
National
Labor
Relations
Board’s
ability
to
prosecute
unfair
labor
practice.
In
a
decision
authored
by
Judge
Don
Willett,
the
circuit
court
furthest
to
the
right
decided
the
NLRB’s
structure
is
likely
unconstitutional.
In
the
matter
before
the
Fifth
Circuit
three
separate
employers
—
SpaceX,
Energy
Transfer
and
Aunt
Bertha
—
argued
that
the
limits
on
president’s
ability
to
remove
board
members
and
administrative
law
judges
are
unconstitutional.
And
the
panel
agreed.
They
affirmed
the
injunctions
freezing
the
enforcement
actions
against
the
employers,
writing,
“The
Constitution
does
not
countenance
unlawful
power.
And
when
the
Constitution
draws
boundaries,
neither
agency
expedience
nor
institutional
inertia
can
erase
them.”
Specifically,
cautioning
against
over-reliance
on
Humphrey’s
Executor,
the
current
conservative
punching
bag,
Willett
holds
in
this
consolidated
action
that
federal
law’s
removal
protections
for
board
members
and
agency
judges
likely
violates
the
constitution.
Willett
writes,
“The
Employers
have
made
their
case
and
should
not
have
to
choose
between
compliance
and
constitutionality.
When
an
agency’s
structure
violates
the
separation
of
powers,
the
harm
is
immediate—and
the
remedy
must
be,
too.”
Deep
sigh.
How
dumb
must
all
the
judges
and
justices
that
have
heard
NLRB
matters,
implicitly
blessing
the
structure,
over
the
agency’s
90
year
history
feel
right
now?
It’s
another
win
for
Donald
Trump’s
uniquely
expansive
view
of
presidential
power,
and
gives
the
Supreme
Court
yet
another
opportunity
to
bend
to
that
vision
of
the
presidency.
Read
the
full
decision
below.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].