In the past, a new presidential administration meant the beginning of a series of National Labor Relations Board (NLRB or Board) decisions that overruled prior precedents. While the White House flipped in January 2025, the Board was stagnant for most of the year due to Member Wilcox’s unprecedented termination; the absence of a quorum; constitutional challenges to the Board’s very structure and the National Labor Relations Act’s (Act) removal protections; and a prolonged government shutdown. Almost one year after the presidential inauguration, the Senate confirmed Scott Mayer and James Murphy, finally bringing the Board to three members and the quorum necessary to issue decisions. Nevertheless, the Board may wait until additional members are appointed before revisiting significant Biden-era precedent, as the third Board member (David Prouty) is a Biden-appointee. With the new Board members, the Senate also confirmed Crystal Carey as the new General Counsel, setting the stage for new enforcement priorities, which are typically announced in a General Counsel Memorandum issued shortly after their appointment. Thus, change is ahead, but at the same time legal challenges to the Board’s very structure and the president’s removal powers weigh on the Board’s legitimacy.
Removal of Former Board Chair Gwynne Wilcox Upheld
It is no secret that the Board is influenced by shifting political dynamics, often resulting in frequent changes to policy, legal authority, and enforcement priorities. For decades, the only constraint had been that the General Counsel and Board members would serve out their terms. President Biden broke tradition when he discharged the General Counsel on the day of his inauguration. The courts upheld that discharge, and, shortly after his inauguration, President Trump discharged Board Chair Wilcox without cause. While a District Court reinstated Wilcox, the Supreme Court issued an order staying the district court’s judgment pending final disposition of the case. Then, in December 2025, the D.C. Circuit upheld Member Wilcox’s removal, finding that the administration would likely succeed on the merits because the NLRB likely exercises considerable executive power. While it’s possible that the case could find its way back to the Supreme Court, the same issue is before the Supreme Court in a different case involving the Federal Trade Commission (FTC), Trump v. Slaughter.
Trump v. Slaughter involves President Trump’s discharge of the FTC Commissioner. The FTC (like the NLRA) limits the president’s ability to remove a commissioner to “inefficiency, neglect of duty, or malfeasance in office.” Nevertheless, President Trump removed former FTC Commissioner Rebecca Slaughter based on her continued service being “inconsistent with [the] Administration’s priorities,” i.e., not for cause. The Supreme Court heard oral argument on Slaughter in early December 2025. The case will reexamine a 90-year-old Supreme Court case, Humphrey’s Executor v. U.S., that created a narrow exception to presidential removal powers for multi-member expert agencies that have quasi-legislative and judicial functions but that lack substantial executive authority. With respect to the FTC and the NLRB, the administration argues removal is constitutional because these agencies exercise considerable executive authority. The Supreme Court is expected to issue a decision by the end of the current term in June.
The Status of Space X – Supreme Court Refuses to Weigh In
In August 2025, the federal Court of Appeals for the Fifth Circuit (in Space Exploration Technologies Corporation v. NLRB) found the Board’s very structure unconstitutional and stayed many unfair labor proceedings. Space X involved a consolidated appeal involving three employers that each faced unfair labor practice complaints and challenged the constitutionality of the NLRB’s structure. Specifically, they argued for-cause removal protections shielding both Board members and administrative law judges (ALJs) were unconstitutional because they exercise executive authority.
The Fifth Circuit first noted that both Board members (via the Act) and ALJs (via the Merit Systems Protection Board (MSPB)) may only be removed for cause. The MSPB is a quasi-judicial agency that adjudicates “[f]ederal employe appeals from agency personnel actions,” and members of the MSPB are themselves only removable “for cause.” Thus, the NLRB's structure features layered protection from presidential removal.
As to the merits of ALJ removal, the Fifth Circuit highlighted that Article II vests “the executive Power” in a single individual—the President of the United States. The court then cited its own precedent in Jarkesy v. Securities & Exchange Commission (2022) where it found that Securities and Exchange Commission ALJ’s, who enjoy similar removal protections as NLRB ALJ’s, were unconstitutional based on what the Space X decision described as less robust executive powers than those of NLRB ALJ’s. The court further concluded that the restrictions on an ALJ’s removal are sufficiently onerous that the president cannot take care that the laws are faithfully executed, as ALJs are inferior officers insulated by two layers of unconstitutional for-cause removal protection. On this basis, the Space X Court found the removal restrictions unconstitutional.
As for Board members, the Fifth Circuit admitted that the applicable precedent is less definitive, but noted the Supreme Court’s caution against extending Humphrey’s Executor to agencies that are not a “mirror image” of the FTC, the focus in that case. The court determined that the exception in Humphrey’s Executor does not apply to the NLRB because its Board members wield significant executive power and its structure does not mirror the FTC. Referring to the Supreme Court’s reversal of a District Court’s order to reinstate Wilcox, the Fifth Circuit eventually concluded that insulating NLRB Board members from presidential removal violates Article II. Hence, Space X and the other employers were likely to succeed on the merits of their challenge to the Board members’ removal protections.
Addressing other factors relevant to a preliminary injunction, the court found that forcing an employer to appear before an unconstitutionally structured agency would inflict irreparable harm, and that neither the government nor the public interest suffers when an unlawful agency structure is prevented from conducting unconstitutional proceedings. Ultimately, the court held that when an agency’s structure violates the separation of powers, the harm is immediate and therefore requires an immediate remedy.
Other Circuit Courts of Appeal (Second, Fourth, Sixth, Tenth, D.C., and likely the Third) have disagreed with the Fifth Circuit, but in December 2025, the Supreme Court denied a petition to hear this issue and resolve the split. It’s possible that the Court’s decision in Slaughter will provide further guidance, as both cases involve agencies that purportedly exercise executive authority.
State Law – Efforts to Assert Jurisdiction Over Private Labor Disputes
As the Board sat without a quorum for most of 2025, several states sought jurisdiction over unresolved private labor law issues even though those issues fall within the NLRB’s exclusive jurisdiction. The NLRB challenged such laws in California and New York, as did Amazon Services LLC in New York, both arguing that the state laws are preempted by the NLRA. Amazon prevailed before a federal district court in New York, and the NLRB mostly prevailed on a preliminary injunction challenging California’s law, where it asserted that the NLRB has exclusive authority over private sector labor matters even if the Board lacks a quorum and litigants experience processing delays, among other things. These state efforts (now moot) represent an extreme departure from the 90 years of near-exclusive federal control over private-sector labor relations and should be viewed more as a political gesture.
What’s Next for Employers?
Due to ongoing challenges to the NLRA and NLRB itself, and with recent appointments to the Board, the law is expected to develop quickly and pose new challenges for employers as we navigate 2026. It is advisable for employers to continue seeking guidance from legal counsel to effectively manage this period of uncertainty.
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