To reflect on the significance of the National Labor Relations Act (NLRA) on its ninetieth anniversary is like drafting the obituary for a beloved ninety-year-old whose long senescence saw them enfeebled by debilitating chronic illnesses, whose period of “terminal lucidity” has now passed, and whose increasingly labored breathing is currently sustained only by the fragile life support of legal and political inertia. The only unsettled questions seem to be whether the law will have a dignified death and how much of its diminished legacy will survive its demise.

At this writing, the agency that was empowered to enforce the NLRA, the National Labor Relations Board (NLRB), has been effectively decapitated. Its general counsel, Jennifer Abruzzo, arguably the most effective in its history, and Gwynne Wilcox, the only Black woman ever to sit on the board, were both fired by President Donald J. Trump on January 27, 2025, despite Wilcox having been approved by the U.S. Senate for a term set to run through August 2028. Although Wilcox was briefly restored by a district court judge, the Supreme Court reinstated Trump’s firing order pending its own review of the case, for which we still wait. Lacking a three-member quorum, the board cannot reach decisions on disputed issues. Meanwhile, as Kate Andrias explains in this feature, lawsuits now threaten to undermine the NLRA entirely by attacking the once seemingly settled constitutionality of the enforcement powers it conferred on the NLRB.Footnote ¹

It now seems that only a political miracle could bring the NLRA back from the abyss. Unless Democrats can take firm control of both houses of Congress, obtain a sixty-vote Senate majority, elect a pro-union Democratic president who makes reviving and reforming the NLRA a top priority, and induce an overtly anti-labor Supreme Court to approve a reformed labor law, the NLRA’s terminal illness will undoubtedly worsen, leaving only the length of its final chapter in doubt.

As one considers the NLRA in this state, it requires an exercise of considerable historical imagination to recall what a watershed it represented when President Franklin D. Roosevelt signed it into law in the midst of the Great Depression. Its enactment was the culmination of decades of agitation by workers and reformers. Since the Progressive Era workers had been demanding “industrial democracy.” The NLRA, known as the Wagner Act after its author, Senator Robert Wagner (D-NY), seemingly delivered on that dream, at least for a large slice of the labor force. In its first decade, the law did more to redistribute power in the United States than any other act of government since the Civil War and Emancipation. The labor movement was a marginalized force in American politics and society before the 1930s. By the mid-1940s, thanks in large part to the NLRA, unions were established in the nation’s basic industries and organized labor had reached unprecedented levels of influence and legitimacy.Footnote ²

The NLRA was not a milestone for all workers, to be sure. As Christian O. Paiz reminds us, the exclusion of domestic and agricultural labor from its coverage led to lasting, damaging consequences for U.S. labor solidarity, creating a relatively lawless zone in America’s fields, orchards, vineyards, and homes within which an often-deportable class of exploited workers of color would grow and spread over time.Footnote ³ Similarly, as Alexis N. Walker’s work shows, the exclusion of government workers at all levels from coverage by the NLRA bifurcated American labor law from the outset, subjecting public sector workers to a conflicting array of legal regimes that varied by state, laws that commonly offered union rights inferior to those of the NLRA, or conferred no union rights at all.Footnote ⁴ Today organized labor is divided nearly evenly between union members who live under the disparate regimes of public- and private-sector labor law, a division that makes it harder to mobilize unions and their allies to fix the defects of either regime.

Although the NLRA’s original exclusions produced lastingly damaging consequences for the labor movement, they seemed less significant during its first decades than the radical amendment of the law by the Taft-Hartley Act of 1947. Unions labeled Taft-Hartley a “slave labor act.” When it passed over President Harry S. Truman’s veto, the Congress of Industrial Organizations (CIO)’s general counsel, Lee Pressman, concluded that the NLRA had been repealed in all but name. Privately, however, most labor leaders were more circumspect. “I don’t think the world is going to end,” CIO president Philip Murray told his colleagues; unions could still “make the best of it, using the tools at hand.”Footnote ⁵

Although Taft-Hartley diluted the NLRA’s protections of workers’ union rights, Murray’s measured assessment long seemed closer to the mark than Pressman’s. To be sure, Taft-Hartley weakened the NLRA by allowing states to pass “right-to-work” laws, proscribing secondary boycotts, penalizing unions led by radicals, and placing restrictions on strikes that would affect the national economy. Nonetheless, union membership continued to grow into the 1960s, albeit not as fast as the expanding workforce. Even Taft-Hartley’s role in triggering the damaging purge of communist-aligned unions from the labor movement was not a complete setback. It blunted the charge that if public employees joined radical unions they would subvert the government. Indeed, surging public sector union growth buoyed the movement up through the early 1970s, a reminder that setbacks can sometimes create opportunities.

Thus, despite the amended NLRA’s glaring weaknesses, unions still seemed to be able to “make the best of it” until the mid-1970s, when conditions changed decisively. As Lane Windham and Jefferson Cowie have shown, amid the economic crisis of the 1970s, employers organized in groups like the Business Roundtable to resist unionization with a ferocity not seen since the 1930s. Launching what the United Auto Workers’ leader Doug Fraser called a “one-sided class war,” they exploited the weaknesses that Taft-Hartley had inscribed into the NLRA, violating workers’ union rights with impunity, unconcerned about the law’s wrist-slapping penalties. As a result, NLRB-supervised union elections fell precipitously, and the erosion of union density accelerated.Footnote ⁶

Jimmy Carter’s 1976 election provided the first opening for unions to try to refortify the NLRA in the face of this employer onslaught. Labor’s 1978 labor law reform effort attempted to streamline union recognition and increase penalties against scofflaw employers. Yet a Republican-led filibuster blocked that bill from making it to the floor of the U.S. Senate. The election of Ronald Reagan two years later further undermined the NLRA’s capacity to protect workers. Reagan’s NLRB appointees were the most anti-union the board had yet seen, and his firing of striking air traffic controllers in 1981 inspired private sector employers to imitate his strikebreaking by taking advantage of a Supreme Court decision that allowed employers to replace strikers during economic disputes. As employers used their court-sanctioned power to break multiple strikes in the 1980s, not only did union membership plummet, but so too did workers’ willingness to engage in collective action, further weakening worker bargaining power.

Amid these developments, faith in the NLRA flagged. On its fiftieth anniversary, labor law scholar Paul C. Weiler was unsure whether the NLRA should be regarded as a “milestone or a millstone.”Footnote ⁷ Many unions began to see it as the latter. The most successful organizing campaigns of the 1980s and 1990s, the Justice for Janitors campaign of Service Employees International Union (SEIU) and the organization of the Las Vegas strip by the Hotel Employees and Restaurant Employees (HERE), explicitly bypassed NLRB-run union elections by pressuring employers to recognize unions through “card check,” i.e., workers’ signing of union authorization cards.Footnote ⁸

Still, most of organized labor clung to the hope of fixing the NLRA. In the 1990s, multiple efforts were launched to reform its flaws. All failed. When President Bill Clinton named a Commission on the Future of Labor Management Relations in a vain effort to fashion a law-reforming grand bargain between business and labor, business proved uninterested. When the Senate considered a bill to prevent striker replacement, a filibuster killed it. When Clinton’s NLRB chair, William Gould, IV, used the board’s rule-making power to improve its functioning, a Republican Congress thwarted him, and he resigned in disappointment in 1998.

In the early 2000s, labor’s allies made another effort to reform the NLRA with the Employee Free Choice Act (EFCA), which would have mandated that employers accept card check recognition. Yet EFCA too was euthanized by a filibuster during President Barack Obama’s first term.

By the time the NLRA celebrated its seventy-fifth anniversary, more pro-union labor experts were concluding that it was irretrievably broken. Economist Richard B. Freeman believed that it had become “an anachronism irrelevant for most workers and firms.”Footnote ⁹ Labor relations scholar Thomas Kochan added that it was time to “close the door on efforts to make just marginal changes in the NLRA and outline the design of a new, modern labor relations policy that better fits the needs of workers, employers, and the broader economy and society.”Footnote ¹⁰

Amid a growing realization of the NLRA’s incapacitation, more thoroughgoing reform ideas began to germinate among labor law scholars over the past decade.Footnote ¹¹ The most ambitious new approaches emerged from the Clean Slate for Worker Power project, led by Ben Sachs and Sharon Block of Harvard Law School, which in January 2020 proposed a range of reforms that would make it easier to unionize, facilitate sectoral bargaining, and bring many independent contractors under the protection of labor law.Footnote ¹²

President Joe Biden’s election presented an opportunity for labor’s allies to incorporate such new thinking into the Protecting the Right to Organize (PRO) Act, the most ambitious labor law reform bill yet. It sought to expand the definition of employee to cover many workers who were being treated as independent contractors. It also promised restoration of secondary strike rights that had been outlawed by Taft-Hartley, protection of strikers from replacement, arbitration of first contracts, and increased penalties for unfair labor practices. Yet, like all previous legislative efforts to reform the NLRA, the PRO Act failed to reach the Senate floor.

Just when it appeared that the hobbled and unreformable NLRA was finished, a minor miracle occurred. As workers emerged from the pandemic, they demonstrated more militancy and a greater desire for unions than the nation had seen in decades. Established unions engaged in a series of strikes, culminating with the United Auto Workers’ “Stand Up” strike of the Big Three U.S. automakers in 2023. Meanwhile, organizing drives erupted at Starbucks, Amazon, and Trader Joe’s, as well as in many other settings. The NLRB also experienced a period of pronounced “terminal lucidity” as General Counsel Abruzzo and the board’s pro-union majority leapt into action obtaining injunctions and issuing a slew of decisions that defended workers’ self-organization. By August 2023, the NLRB had charged Starbucks with over one thousand instances of unfair labor practices. Responding to worker self-organization, Abruzzo and her colleagues demonstrated that despite all of its accumulating weaknesses, the NLRA could still function effectively under the right conditions. Unfortunately, while the NLRB support was not enough to produce big union breakthroughs at Starbucks, Amazon, and other employers, the Biden board’s zealous enforcement actions triggered the current effort by Elon Musk and others to challenge the NLRB’s constitutional authority in court.

Yet, as we mark the NLRA’s ninetieth anniversary, the recent heroics of the Biden board seem a distant memory. History suggests that reforming and updating the law is impossible without a major political realignment and an end to the Senate filibuster. Not only is it difficult to imagine a scenario in which the NLRA could be strengthened, but it is also all but certain that the combined actions of the courts and President Donald Trump are about to further weaken it. Tellingly, the suit brought by SpaceX and other anti-union employers does not focus on the fundamental constitutionality of the NLRA, but instead targets the enforcement mechanisms and structure of the NLRB. At the same time, Trump’s firing of duly confirmed board member Wilcox has led to a legal case that tests—and might soon abolish—the independence of NLRB members. If the Supreme Court severs the questions of NLRB board members’ independence and NLRB administrative law judges’ powers from the question of the constitutionality of the NLRA overall, it will leave us with what legal scholar Alvin Velasquez calls a “zombie agency,” one that continues to exist in name, yet whose ability to protect workers’ rights is, for all intents and purposes, gone.Footnote ¹³ Even if the most pro-business Supreme Court in a century does not go that far, it is certain that the NLRA will be weaker than it has ever been by the end of Trump’s second term.

Given these circumstances, workers should no longer hope for relief from the NLRA. Nor will there be any reform of or replacement for the act unless labor can find a way to dramatically change the facts on the ground. Those facts most in need of change are not found primarily in Congress, the courts, or the Oval Office, but rather in workplaces and the streets. Only if workers disrupt the increasingly unfavorable status quo will they create a window of opportunity where none currently exists. Therefore, if unions hope to celebrate the NLRA’s centenary ten years hence, they should now behave as though the law is already dead, organizing without reliance on its broken enforcement powers, waging fights like those that led to the NLRA’s passage in the first place, and engaging in acts of mass civil disobedience when necessary. It is now clear—if it was not a decade or two ago—that efforts to reform the NLRA will not lead to the revival of the labor movement. Yet there is still hope that through collective action, workers themselves can create a path toward twenty-first-century legislation that builds and improves on the visionary act that was signed into law on July 5, 1935.