For many decades now, worker advocates have bemoaned the inefficacy of the National Labor Relations Act (NLRA), the statute that protects employees’ right to organize, bargain collectively, and strike.Footnote ¹ Passed in 1935 after massive worker struggle, the NLRA initially helped spur nearly five million workers to engage in industrial action and almost three million to join a union.Footnote ² Over time, however, the statute’s potency waned. Congressional amendments and Supreme Court interpretation narrowed the law, and employers exploited its weaknesses. As scholars have detailed, the NLRA today lacks sufficient remedies and enforcement mechanisms. It excludes millions of vulnerable workers, including domestic, agricultural, and gig workers. It fails to protect collective action, permitting permanent replacements during strikes and prohibiting secondary boycotts. Its focus on worksite bargaining with individual employers, to the exclusion of sectoral bargaining, is a poor match for the contemporary economy. The statute has “drifted” from its original purpose.Footnote ³

Yet, for all its failings, the NLRA still represents perhaps the most significant incursion into the employment relationship—indeed, into capitalism—of any modern U.S. statute. After all, the statute promises to protect the right of workers to act collectively and to withdraw their labor if their demands are not met. It enables workers to transform decision making within firms so that power is no longer held solely by managers and owners and instead is shared, democratically.Footnote ⁴

Perhaps for this reason, nearly a century after its birth, the NLRA remains a central target of big business and the Right. In the past year, corporations including Space X, Amazon, Starbucks, and Trader Joe’s have argued in legal proceedings that the agency tasked with enforcing the Act—the National Labor Relations Board (NLRB)—is unconstitutional.Footnote ⁵ More recently, the Trump Administration has joined the corporate critics. Defying longstanding legal precedent and in violation of the statute, President Trump fired the chairperson of the NLRB, Gwynne Wilcox, without cause. He thereby teed up the question whether the NLRB’s structure, which provides a measure of independence from the president, is constitutional.Footnote ⁶ In so doing, the president also rendered the NLRB without a quorum to do its work.Footnote ⁷

This is not the first time that opponents of workers have attempted to dismantle labor law through constitutional challenge. When the NLRA, then known as the Wagner Act, was first enacted, the nation’s leading businesses opposed it staunchly and some declared they would ignore it.Footnote ⁸ On September 5, 1935, an organization of the biggest manufacturers in the country issued a lengthy memorandum concluding that the Act “constitutes a complete departure from our constitutional and traditional theories of government.”Footnote ⁹ The statement, over one hundred pages long, was signed by prominent lawyers representing all the major industries.Footnote ¹⁰ Numerous legal challenges ensued.

Most observers at the time assumed the Supreme Court would strike down the statute, given its then parsimonious approach to congressional power and its embrace of the “liberty of contract” theory.Footnote ¹¹ However, against the backdrop of continuing labor turmoil and mounting pressure from President Franklin Roosevelt—who after securing an overwhelming election victory threatened to expand the number of justices—the Court switched course. In NLRB v. Jones & Laughlin Steel Corp., the Court, by a five to four vote, upheld the NLRA and declared that Congress did have authority to regulate labor under the commerce clause.Footnote ¹² The justices’ momentous about-face allowed the New Deal to stand, while ushering in the modern era in constitutional law.Footnote ¹³

Even at the time, observers recognized the significance of Jones & Laughlin, with “the largest crowd in Supreme Court history pack[ing] the great white marble edifice” to hear the justices render their decision.Footnote ¹⁴ The eponymous Senator Robert Wagner called the Court’s decision the “most important interpretation of the commerce clause since John Marshall spoke in Gibbons v. Ogden.”Footnote ¹⁵ Constitutional scholar Edward S. Corwin described a “radical” and “swift” transformation in American constitutional law.Footnote ¹⁶ With the Court no longer viewed as the enemy of the New Deal, Roosevelt’s court-packing plan lost support, and the case, along with another labor case decided just two weeks prior, came to be known as “the switch in time that saved nine.”Footnote ¹⁷

Yet, constitutional fights are rarely over—especially those that go to the heart of how power is distributed and who wields it. The Trump Administration and numerous corporations are now reviving the constitutional attack on the NLRA. This fight is as significant as the 1930s battle—both because of the implications for the shape of American government and because of the potential effect on workers, the economy, and the democracy.

First and foremost, the Trump Administration and corporate challengers contend that the Board’s structure violates Article II of the Constitution and the “unitary executive” theory. On this account, Board members, who form the highest body within the agency and who can be fired only “for neglect of duty or malfeasance in office,” are unconstitutionally shielded from the president’s supervision.Footnote ¹⁸ Yet, the Supreme Court upheld such protections in 1935, holding in Humphrey’s Executor that Congress has power to create multimember expert boards, with members removable only for cause.Footnote ¹⁹ The NLRA is just one of many agencies with this structure, which aims to insulate agencies from political pressure.Footnote ²⁰ Consistent with its broader attack on rule of law and democratic institutions, the Trump administration thus seeks to upend much of the modern administrative state.

Corporate critics also challenge the constitutionality of the Board on numerous other bases: Again invoking the unitary executive theory, they object to the job protections for the NLRB’s administrative law judges, who hear, settle, and decide unfair labor practice cases nationwide.Footnote ²¹ They also assert that NLRB proceedings violate the Seventh Amendment right to trial by jury and Article III of the Constitution by allowing the Board, rather than federal courts, to grant certain monetary remedies to workers.Footnote ²² And some contend that the statute violates general principles of separation of powers and due process.

Back in the 1930s, the Supreme Court rejected these argument as well. While the focus of the Jones & Laughlin opinion was on the commerce clause, the Jones & Laughlin steel company, like Space X and other corporate challengers today, also claimed that the NLRB’s structure violated Article III, the Fifth Amendment, and the Seventh Amendment of the Constitution.Footnote ²³ The Court disposed of these arguments in a few lines.Footnote ²⁴ For nearly 100 years, the constitutionality of the NLRA was considered settled.

Yet given today’s radically conservative Court, and a president who has styled himself a king, constitutional arguments that were long thought to be off-the-wall are now back “on-the-wall.”Footnote ²⁵ Most lower courts that have considered the constitutional challenges to the NLRB’s structure have applied precedent and rejected them.Footnote ²⁶ But in May of 2025, the Supreme Court’s conservative majority signaled its sympathy to the arguments against removal protections—and in favor of the unitary executive theory—by staying an injunction that had been entered in favor of Chair Wilcox.Footnote ²⁷ Then, in December of 2025, during oral argument in a case involving the Federal Trade Commission, a majority of justices appeared poised to expand significantly the president’s removal authority.Footnote ²⁸ Moreover, in a series of prior cases, the conservative majority on the Court has already significantly weakened administrative agencies, while strengthening courts’ power.Footnote ²⁹ At the same time, the Court has signaled its support for robust presidential authority, even presidential impunity.Footnote ³⁰

The companies’ arguments thus draw from conservative legal doctrine and theory that reach far beyond labor law.Footnote ³¹ Yet the NLRB is a particular focus for many of the most powerful corporations, trade associations, and right-wing think tanks, perhaps because the NLRA so squarely challenges corporate power. Indeed, the conservative constitutional assault on labor is not limited to separation of powers or administrative law arguments. The Chamber of Commerce and other trade associations, along with allied right-wing organizations, have mounted a broader constitutional challenge to labor law, with some notable recent successes at the Supreme Court.Footnote ³² For example, in Janus v. AFSCME, the Court held that fair share fees, which obligate all workers to contribute to the cost of administering a union contract and help ensure the financial viability of unions, violate the First Amendment when used in public sector employment.Footnote ³³ More recently, the Court struck down a state law granting union organizers limited access to farms to talk to workers; it held that such access constituted a “taking” of property in violation of the Fifth Amendment.Footnote ³⁴ Meanwhile, the Trump administration has mounted a frontal assault on labor, firing hundreds of thousands of federal workers and challenging their right to engage in collective bargaining, while targeting immigrant workers for deportation without due process.Footnote ³⁵

What will result from the pending challenges to the NLRB is uncertain. Even assuming the companies prevail on some claims and the Court reshapes, weakens, or strikes down the Board, the effect on labor organizing and unions is hard to predict. On the one hand, a win for the Trump administration and the corporate challengers could be devastating for workers. Despite its failings, the NLRB has played a critical role in enabling unionization and collective bargaining; its demise or diminishment could return the country to a regime far more hostile to workers, exacerbating a race to the bottom, with no federal floor.Footnote ³⁶ A decision in favor of the Trump administration could also embolden the president to challenge other long-established principles of constitutional law, encouraging his assault on federal workers, immigrant workers, and the rule of law. On the other hand, some observers believe that the absence of a federal agency with significant preemptive reach might set free a labor movement hamstrung by legalism, and might allow progressive states to experiment.Footnote ³⁷ The actions of the conservative Court could also spur backlash among working Americans who broadly support unions, further undermining workers’ confidence in the Court and leading them to engage in more protest and disruption to enforce their rights.Footnote ³⁸ Indeed, that is what happened in the 1930s, when a Court deeply antagonistic to labor lost the support of the public until it eventually reversed course in Jones & Laughlin.

One thing is certain, however: Questions about labor rights are fundamentally questions about how we constitute ourselves as a nation, about who holds power and how they can wield it. These are inevitably questions of constitutional law. At the same time, the constitutional future of the NLRA and of labor law more generally is as much a political and economic fight as a legal one. With the country facing staggering levels of inequality, millions of working people struggling to make ends meet, and a president committed to aggrandizing his own power at the expense of democracy, the political fight is on. And the stakes are every bit as high as they were a century ago.