Abstract
Is American labor law constitutional? The US Supreme Court resolved this question almost ninety years ago: yes, Congress can use law to promote worker power; and yes, Congress can entrust the National Labor Relations Board (NLRB) with the authority to make labor law’s promises real. Today, however, twenty-first-century employers are reviving the lost constitutional claims of their twentieth-century counterparts, with shocking success, given how settled the law has been. According to employers in a spate of recent suits, the NLRB is rife with constitutional infirmities, afflicting its judges, its remedies, and potentially its inherent structure. In the conservative Fifth Circuit, courts are already ruling in employers’ favor. Ironically, these attacks can be seen as a testament to labor’s recent successes. The suits are defensive as much as offensive: a frenzied response by employers unnerved by labor’s political momentum and the Biden Board’s efficacy in making labor law work for workers again after decades of quiescence. What does the future hold for the Board? This short essay gives context and clarifies the stakes.
