Law360: 5th Circ. To Weigh NLRB Constitutionality In High-Stakes Case
Professor Anne Lofaso, University of Cincinnati College of Law, recently spoke with Law360 about a case that challenges the structure of the National Labor Relations Board (NLRB). This challenge is a key test of the agency’s constitutionality and has the potential of ending up before the U.S. Supreme Court.
SpaceX and two other companies have asked the United States Court of Appeals for the Fifth Circuit to uphold three injunctions Texas federal judges issued in 2024 that prevent the NLRB from pursuing unfair labor practice cases against them after finding the board’s structure was likely unconstitutional. Foundational to these cases is the theory that the agency’s administrative law judges and members are unconstitutionally insulated from being fired by the president.
The case could impact the NLRB’s ability to prosecute labor law violations, with potentially larger ramifications depending on the court’s decision and whether or not the U.S. Supreme Court takes up an appeal.
Professor Lofaso told Law360 that "It [the case] would thwart the board in any jurisdiction that seems to be friendly to this argument. … Larger corporations with national footprints would be able to take advantage of a ruling to thwart board actions more easily than smaller businesses with more limited operations.”
Further, “a ruling against the board would likely end up at the Supreme Court, and while it would disrupt the board in the short term, it could ultimately be fixed by striking the removal protections from the NLRA. The more difficult ruling to remedy would be if the Fifth Circuit held that the Norris-LaGuardia Act does not bar such suits, because it would make room for similar challenges that would handcuff the board.
"There are ways to fix the [NLRA] on the constitutional issues," Lofaso said. "But the injunctive ones? Much harder. You'd have to have an act of Congress."
Read the entire story here (paywall): 5th Circuit to Weigh NLRB Constitutionality in High-Stakes Case
Latest UC News
- CityBeat: When can police arrest demonstrators?Ryan Thoreson, an assistant professor at the University of Cincinnati College of Law, spoke with CityBeat publication about legal precedence and hateful speech for a story about a recent neo-Nazi demonstration in Greater Cincinnati.
- Student brilliance in action: Attend the Three-Minute Thesis CompetitionThe Graduate College invites the UC community to attend the Three Minute Thesis Competition to witness graduate students present their research in a compelling three-minute format using just one PowerPoint slide. This event provides a unique opportunity to engage with innovative research and storytelling.
- UC professor seeks to make death care more inclusiveJennifer Wright-Berryman of UC’s College of Allied Health Sciences is one of the founders of Equal Deathcare, a web-based resource where LGBTQIA+ individuals can find inclusive and affirming end-of-life and death care.
- Cincinnati mother and son team up to create an app that helps stroke patientsWLWT highlighted the University of Cincinnati’s Pooja Khatri and her son Ajai Nelson who have collaborated to launch the NIH StrokeNet Trial Finder app.
- Corporate Law Center symposium examines the changing administrative law landscapeThe Corporate Law Center at Cincinnati Law will host its 34th symposium, analyzing the changing administrative law landscape.
- Civil Discourse symposium to promote meaningful dialogue and engagement within the communityStudent organizations from the University of Cincinnati College of Law will host the Civil Discourse Symposium, designed to promote meaningful dialogue and engagement within the local and legal communities.
