US Sen. Bernie Sanders on Wednesday evening warned that a ruling by the 5th Circuit Court of Appeals, which struck down a law that shielded National Labor Relations Board judges from being fired at will by the White House, would give union-busting employers yet another advantage in a legal system that is already stacked in their favor.
As Reuters reported, the appeals court ruled that protections for administrative judges at the board were unconstitutional impediments to the president's ability to run the executive branch as he sees fit.
"This is what oligarchy looks like," Sanders wrote in a post on X. "Today, two Trump judges ruled that the NLRB's structure is unconstitutional giving [SpaceX CEO] Elon Musk, worth $410 billion, and other union busters the absolute power to exploit workers and violate labor law with impunity. This disastrous decision cannot stand."
Circuit Judge Don Willett, a Trump appointee, wrote that "because the executive power remains solely vested in the president, those who exercise it on his behalf must remain subject to his oversight," meaning that the president should have more power to dismiss judges.
As a result of the ruling, National Labor Relations Board (NLRB) cases against SpaceX, pipeline operator Energy Transfer, and social services search engine Aunt Bertha have for now been put on hold, although NLRB is expected to appeal the ruling.
California-based law firm CDF Labor Law explained that, under the 1935 National Labor Relations Act, the president could only fire NLRB board members for "neglect of duty or malfeasance in office," and could only remove NLRB administrative judges for "good cause" after undergoing a hearing conducted by a separate agency.
New York-based labor attorney Benjamin Dictor warned that this ruling could ultimately leave the US labor movement with little recourse when employers violate workers' rights.
"Right now, the NLRB is the only federal body that investigates unfair labor practices, certifies unions, and compels bargaining. If it's defunct, there is no backup system," wrote Dictor. "That means workers fired for union activity? No remedy. Employers refusing to bargain? No consequences. Organizing elections? Suspended indefinitely."
If federal courts eventually rule that the NLRB is unconstitutional, he added, "it won't just be a US labor crisis. It could put the US out of compliance with its obligations under international law."
He then explained that the US has obligations as a member of the International Labor Organization (ILO) and that gutting NLRB would throw international labor standards into chaos.
"In ILO terms, that's the US failing to ensure even basic compliance with freedom of association and collective bargaining standards," he said. "It's not just a domestic constitutional question. It's the US signaling to the world that workers' rights are optional—and that's exactly what the ILO was created to prevent... The stakes are global."
