Fifth Circuit Finds NLRB Structure Likely Unconstitutional

The Fifth Circuit concluded that the removal protections for NLRB Members and Administrative Law Judges (ALJs) likely violate the U.S. Constitution.

The Fifth Circuit’s ruling does not shut down the NLRB.  The decision is binding only in Louisiana, Mississippi and Texas — the states covered by the Fifth Circuit. But it marks another setback for the NLRB, which is already facing litigation over President Trump’s firing of NLRB Member Gwen Wilcox and is hampered by a lack of “quorum” that prevents the Board from taking official action.

Removal Protections Likely Unconstitutional, Fifth Circuit Says
The Fifth Circuit focused on how, under the NLRA, decision makers are shielded from termination by the President. Specifically, Board Members may be removed only “for cause,” and ALJs are doubly protected: they may be removed only for cause and only through another board.

The court concluded that these removal protections for NLRB Members and ALJs likely violate the U.S. Constitution. It further held that being subjected to unconstitutional proceedings constitutes irreparable harm, granting the employers’ requests for an injunction to halt their NLRB proceedings.

The NLRB is expected to appeal to the U.S. Supreme Court, which will ultimately decide whether the NLRA’s removal protections are constitutional.

The NLRB’s “Quorum” Crisis
Adding to the uncertainty, the NLRB currently lacks a quorum. According to a 2010 U.S. Supreme Court decision, the NLRB must have at least three members to exercise its authority. 

After President Trump fired NLRB Member Gwen Wilcox in February 2025, the Board was reduced to two members: David Prouty and Marvin Kaplan. Kaplan’s term expired on Aug. 27, leaving the NLRB with only one member. Without a quorum, the Board cannot issue decisions, leaving hundreds of cases in limbo.

There is some hope that the quorum crisis may end. In July 2025, the White House nominated Scott Mayer, who is currently Chief Labor Counsel for Boeing Co., and James Murphy, a longtime NLRB attorney and counsel to multiple Republican members, to fill the vacancies. If confirmed by the Senate, the Board would have the three members needed for quorum. However, the Senate has not yet scheduled hearings on either nomination.

States Attempt to Step into the Fray
In response to the NLRB’s paralysis, several states are moving to fill the gap by proposing “mini-NLRAs.”

These efforts may clash with federal law, which normally preempts state regulation of private-sector labor relations, but legislators say they are necessary backups.

The NLRB Fires Back
On Aug. 15, Acting NLRB General Counsel William Cowen issued a memo warning that any state attempt to assert jurisdiction over matters governed by the NLRA would be preempted. The memo cited San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), which held that states may not regulate conduct “that the NLRA protects, prohibits, or arguably protects or prohibits.” 

Cowen says legislation like that in New York and California “cannot be reconciled with the Supremacy Clause, found in Article VI, Clause 2 of the U.S. Constitution.”  

The message was clear: the NLRB intends to continue operating and defending its authority, despite the Fifth Circuit ruling and its current lack of quorum.