Fifth Circuit Questions National Labor Relations Board Constituti

When you mix labor law with constitutional law, you don’t get a neat two-layer cakeyou get a seven-layer parfait with extra precedent sprinkled on top. In 2025, the U.S. Court of Appeals for the Fifth Circuit took a hard look at the National Labor Relations Board (NLRB) and asked a question that makes agency lawyers reach for coffee: Is the Board’s current structure constitutional?

This isn’t just courtroom theater. If the NLRB’s structure is deemed unconstitutional (or even “likely” unconstitutional), it can affect what happens to unfair labor practice (ULP) cases, how quickly disputes get resolved, and whether employers and unions can rely on the same rules from one region of the country to the next. In plain English: it could change the plumbing of federal labor enforcementwhile everyone is still trying to use the sink.

First, What Does the NLRB Actually Do?

The NLRB enforces the National Labor Relations Act (NLRA), which protects many private-sector employees’ rights to organize, bargain collectively, and engage in certain concerted activity. In a typical ULP case, the process looks like this:

• Someone files a charge.
• The NLRB investigates, and if there’s merit, issues a complaint.
• A hearing is held before an Administrative Law Judge (ALJ).
• The ALJ issues an initial decision.
• The five-member Board can review and issue the agency’s final decision.

This system is designed to be specialized and consistentlike having a mechanic who only works on one model of car. But the Fifth Circuit’s concern wasn’t about the “mechanic” skills. It was about who can fire the mechanicand who can fire the people supervising the mechanic.

The Fifth Circuit’s Core Concern: Removal Power and Article II

The U.S. Constitution (Article II) places executive power in the President. A long-running debate in administrative law is how much independence Congress can give certain federal officials from presidential controlespecially through “for-cause” removal protections (meaning an official can be removed only for specific reasons, not simply “you’re fired”).

The NLRB has two big categories of officials relevant here:

• Board Members (the decision-makers at the top)
• Administrative Law Judges (ALJs) (the trial-level adjudicators)

Board Members: “For Cause” Removal Limits

By statute, NLRB members have removal protectionsgenerally meaning a President can’t remove them at will. The Fifth Circuit focused on whether this insulation clashes with the modern Supreme Court’s view of executive control, especially when an agency performs substantial executive functions.

ALJs: The “Double Layer” Problem

ALJs are typically removable only for good cause, established through specific processes. In some structures, that can create multiple layers of “for-cause” protection between the President and the ALJ. The Supreme Court has previously expressed constitutional concerns with that kind of “double insulation” in separation-of-powers cases. The Fifth Circuit saw NLRB ALJs as potentially fitting into that problem category.

So What Did the Fifth Circuit Do?

In a closely watched dispute involving major employers, the Fifth Circuit upheld preliminary injunctions that halted ongoing NLRB proceedings while constitutional challenges moved forward. The court’s reasoningespecially its willingness to allow a pause of agency proceedings based on structural constitutional claimswas a big deal.

That move matters because it suggests a party might not have to “wait and lose” inside the agency before raising the constitutional issue. Instead, it can argue that being subjected to proceedings run by an allegedly unconstitutional structure is itself a harm that justifies immediate court intervention.

Why This Matters Beyond One Case

1) It Could Change the Practical Power Balance in ULP Litigation

If a company can get a federal court to freeze an NLRB case by raising a credible structural challenge, the leverage shifts. Even if the employer ultimately loses on the merits, the timeline changesand in labor disputes, timeline is often strategy. Delays can affect organizing campaigns, bargaining momentum, reinstatement remedies, and settlement pressure.

2) It Creates Geographic Differences in Labor Enforcement

The Fifth Circuit covers Texas, Louisiana, and Mississippi. If parties there can more easily challenge NLRB proceedings in federal court, labor enforcement may look different than it does in other circuits. That can encourage forum shopping, parallel litigation, and inconsistent outcomesnone of which are great for a system that’s supposed to provide national labor stability.

3) It Reignites the Big Debate: Are Independent Agencies Still “Independent”?

The Supreme Court has been chipping away at older assumptions about agency independence for years. The Fifth Circuit’s approach fits into that broader trend: asking whether agencies that act like executive enforcers can still be structured like semi-independent commissions without violating separation-of-powers principles.

How This Fits With Supreme Court Precedent (Without Melting Your Brain)

You don’t need a constitutional law seminar to understand the basic tension:

• Older precedent supported “independent” commissions with removal protections in certain contexts.
• More recent cases emphasize that executive power requires presidential accountabilityespecially where an agency enforces laws, prosecutes cases, or imposes penalties.

The Fifth Circuit’s analysis drew from this modern trajectory and applied it to how the NLRB operates in real life: it investigates, prosecutes (through its General Counsel), litigates in administrative hearings, and issues binding decisions. That looks less like a neutral advisory panel and more like a powerful enforcement machineso the court asked: should it be more directly accountable to the President?

What About Workers and Unions?

It’s easy to frame this as “employers versus the agency,” but the ripple effects are broader:

• Workers may face longer waits for remedies like reinstatement or backpay if cases are stayed.
• Unions may have campaigns complicated by litigation delays and uncertainty over enforcement authority.
• Employers may face inconsistent guidance, especially if different circuits disagree on whether and when district courts can step in.

In short: everyone gets uncertainty, and nobody ordered it.

What Happens Next?

When a circuit court questions an agency’s constitutional structure, three things usually happen:

1. More challenges (because litigants notice what’s working).
2. More splits among federal circuits (because not everyone reads precedent the same way).
3. More Supreme Court gravity (because eventually someone has to resolve it).

Meanwhile, related litigation about removal protections and independent agencies continues to evolve, and courts are increasingly willing to treat “structure” arguments as more than academic theories. Whether Congress ultimately adjusts the NLRB’s designor the Supreme Court redraws the boundary linesthis issue is likely to remain hot.

Practical Takeaways for 2025–2026 Planning

For employers

• Expect constitutional arguments to show up more often in NLRB-related litigation, especially in high-profile disputes.
• Be prepared for parallel tracks: the labor merits fight and the “is the referee constitutional?” fight.
• Don’t treat this as a free passcourts can still reject injunction requests, and the law can shift quickly.

For unions and workers

• Plan for delay risk in certain jurisdictions and casesespecially where employers have resources to litigate aggressively.
• Keep campaign strategy flexible: legal uncertainty can change bargaining dynamics and public messaging.
• Document timelines and harms carefully; delay arguments work both ways in court.

Conclusion

The Fifth Circuit’s questioning of the NLRB’s structure isn’t just another legal headlineit’s a sign that the ground under federal labor enforcement is shifting. Whether this ends in a Supreme Court showdown, congressional redesign, or a patchwork of circuit-by-circuit rules, the message is clear: the fight isn’t only about what the NLRA means, but who gets to enforce itand under what constitutional wiring.

Experiences and Lessons From the Real World

Below are experience-driven patterns that practitioners and workplace leaders commonly describe when constitutional challenges collide with NLRB disputesespecially in the Fifth Circuit’s current climate. These aren’t “war stories” about any one company. Think of them as the repeatable lessons that show up whenever legal uncertainty walks into HR and says, “Hello, I’d like to rearrange your quarter.”

1) The Case Becomes Two Cases (and the second one is weirder)

In a classic ULP situation, most teams focus on the underlying conduct: Was a policy lawful? Was someone disciplined for protected activity? Did a manager say something that sounded like a threat, even if it was delivered with a smile and a donut box?

When a structural constitutional argument enters, the dispute often splits into two tracks:

• The labor-law track: witnesses, emails, policies, and credibility determinations.
• The constitutional track: removal protections, separation of powers, and whether the forum itself is lawful.

Experienced counsel say the “two-case” effect changes internal decision-making. Executives who normally ask, “What’s our settlement range?” start asking, “What’s our appellate posture?” That’s not always good. It can turn a fixable workplace conflict into a multi-year legal project with a budget that needs its own budget.

2) Time Becomes a Negotiation ToolFor Everyone

Delay is usually framed as an employer advantage, but the experience on the ground is more mixed. Employers may benefit from slowing an enforcement action, but long timelines can also keep uncertainty alive. HR teams frequently describe the “hanging case” problem: managers remain anxious, training gets put on pause, and policy updates are delayed because nobody wants to change the facts midstream.

On the union side, organizers often adapt by shifting emphasis from legal remedies to momentum tactics: worker meetings, public pressure, bargaining communications, and rapid response to workplace issues. In other words, the campaign doesn’t necessarily stopit just changes lanes. If the legal lane is jammed, the organizing lane gets louder.

3) Communication Strategy Matters More Than the Briefing

One repeated experience: the public narrative can outrun the legal reality. A constitutional challenge can be misunderstood internally as “we’re immune now” or externally as “the agency is shut down forever.” Neither is usually accurate.

Strong teams handle messaging with discipline:

• Internally: “The process may change, but our expectations for respectful conduct do not.”
• Externally: “We’re engaging in lawful processes while continuing to operate and comply with workplace obligations.”

This is less about PR polish and more about preventing morale whiplash. People don’t need a seminar on Article IIthey need clarity about what changes and what doesn’t.

4) The Best “Constitutional Defense” Is Still Boring Compliance

Even when structural arguments are available, experienced labor professionals emphasize the same unglamorous truth: the best outcomes come from avoiding the underlying violations in the first place. Courts can change, but a manager’s off-the-cuff comment will still be in the record forever.

Organizations that handle uncertainty best tend to do three things consistently:

1. Train supervisors on NLRA-safe communication (especially during organizing activity).
2. Audit policies for overly broad rules that restrict protected concerted activity.
3. Document decisions so discipline and performance actions have clear, non-retaliatory support.

Constitutional litigation is high-altitude strategy. Compliance is ground-level survival. And in labor law, most injuries happen on the ground.

5) Prepare for “If/Then” Planning

Because the legal landscape can shift quickly, many leaders build simple scenario plans:

• If proceedings are stayed, then we reassess settlement posture and internal communications cadence.
• If enforcement resumes, then we accelerate witness preparation and policy fixes.
• If the Supreme Court takes up the issue, then we plan for longer timelines and investor/board updates.

This “if/then” style planning is one of the most practical experiences reported by organizations navigating uncertainty. It keeps teams calm, reduces overreaction, and prevents the workplace from feeling like it’s being run by court docket notifications.