True story.  When I was a wee associate at my first firm in Chicago, a senior partner insisted that every NLRB Answer that I filed include a defense that the NLRA (National Labor Relations Act for non-labor folks) was unconstitutional.  His argument was based on the Commerce Clause - an issue that had been decisively addressed (and rejected) by the SCOTUS in 1937.   But maybe SCOTUS's decision in yesterday in Trump v. Slaughter will breathe life into his theory.

For those of you ignoring SCOTUS reporting, yesterday, in Trump v. Slaughter, SCOTUS, in a 6-3 decision, overturned a unanimous 1935 decision (Humphrey's Executor v. US).   That case had upheld limitations imposed by Congress on the President's authority to terminate members of the Federal Trade Commission (specifically, the President could only remove an FTC member “for inefficiency, neglect of duty, or malfeasance in office. . . ).  The Humphrey's Executor decision included heavy-weight SCOTUS justices well known to law students (including Justices Brandeis, Cardozo, and Stone ).  However, the ”death" of Humphrey's Executor was widely anticipated given its steady erosion in more recent SCOTUS decisions as well as the advancement of the unitary executive theory of executive (Presidential) authority under Article II of the Constitution (and the related separation of powers doctrine).

The NLRA, as passed in 1935, included comparable limitations on the President's ability to terminate NLRB members ("Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.").  And in one fell swoop, those restrictions are now unconstitutional.  Hard to believe a statute that has dominated my work life is, in fact, unconstitutional after all.  But what does it all mean?

Upon taking office in 2025, the President terminated NLRB Member Wilcox, admittedly without the "cause" reasons specified in the NLRA.  She sued.  So without directly ruling on Member Wilcox's case, Trump v. Slaughter signals the outcome for former Member Wilcox's challenge to her termination.  As Ivan Drago once said: "you will lose".  As an aside, a panel from the DC Circuit has already upheld the President's authority to terminate Member Wilcox.  

But still - what does it mean for labor professionals (on both sides)?  The short answer is simply that the current and future Presidents have the authority to terminate any NLRB member (and the NLRB's administrative law judges) for any reason - including that an NLRB member doesn't share his/her “philosophy” or governing principles.  Naturally, the authority granted to the President will apply to both Democratic and Republican Presidents.  But the NLRA (and NLRB) will continue - SCOTUS hinted in fn 3 that the unconstitutional restrictions are severable (although it did not rule on that issue).  

Longer term - who knows?  I've been asked what future Labor Boards may look like and the impact.  Really hard to say.  We're two years into the President's term and we still don't have 5 NLRB members (in part probably awaiting the outcome of yesterday's decision).  So the President could "stack" the NLRB with five Republican members, or maybe four and one Democratic member.  Or maybe he continues tradition with a 3/2 split.  But any of those combinations would still likely issue more conservative interpretations of the NLRA (as opposed to the generally union/worker friendly rulings of a Democratic NLRB).  Naturally - if we have 5 Republican members - management practitioners likely wouldn't have to wait around for dissenting opinions from the other side - so maybe NLRB decisions start coming out faster?  Maybe higher turnover at the NLRB and among ALJ's if decisions are issued that displease a future President?

But I don't see a sea change.  Since the Clinton years, the NLRB has waxed/waned with more severe "lurches" in its interpretation of the NLRA depending on which party was in power.  As an example - under the Biden Board in 2024 - the NLRB ruled that so-called "captive audience" meetings were inherently coercive and violated federal labor law - breaking with 80 years of precedent to the contrary.   While all Presidents during my work life have certainly appointed labor law "experts" to the NLRB, it is difficult to agree that the NLRB has acted as a so-called expert independent agency unaffected by changes in the White House - a point noted by Justice Gorsuch in his concurring opinion ("As we’ve seen, these agencies were never truly independent from politics or even the influence of the President’s appointment powers.")

The more interesting question for me - at least for now - is what the current administration will do with the NLRB in the next two years as the clock is ticking on his appointment power.  Ordinarily, and in the past (even during the President's first term), we would have anticipated 3 Republicans/2 Democrats on the NLRB, and reversals of the major decisions issued by the Biden Board -with dissents from the Democratic members.  We're still at four NLRB members rather than five (3 R, 1 D) and Member Prouty's term expires in August.  Will we see a 5 member NLRB all from the Republican side?  Given the Republican Party's efforts to make inroads with blue-collar workers, as well as Teamster President Sean O'Brien's efforts to align with the President, I'm not sure that's the path he will choose.  On the flip side, his overall record is relatively hostile towards organized labor.  But with two years left in the President's term, many employers are very eager for the NLRB to: (1) get rid of its enormous backlog of cases; and (2) start unraveling some of the excesses of the Biden NLRB.  Hopefully, the immediate outcome of Trump v. Slaughter is we get a full NLRB that gets to work.