Fifth Circuit Federal Court Has Upheld Injunctions against NLRB Proceedings

On August 19, 2025, the Fifth Circuit Court of Appeals upheld preliminary injunctions against complaint proceedings before the National Labor Relations Board (NLRB).  The court held that plaintiffs will likely prevail in their arguments that protections limiting the President’s removal powers over administrative law judges (ALJs) and Board members violate the United States Constitution. 

Space Exploration Tech. Corp. v. National Labor Relations Board, No. 24-40533.  The concept is that Article II of the Constitution states that executive power rests solely in the President, and thus subordinates who have that power on the President’s behalf must remain subject to his control.  It is significant, however, that the Fifth Circuit ruling did not determine the outcome of the argument that the court could sever any offending removal protections, and allowing the NLRB case to proceed otherwise. 

Thus, it is possible that this court and other courts ultimately allow NLRB proceedings to continue as normal and require the removal of the unconstitutional provisions dealing with the litigated protections.  It should also be noted that a number of federal district courts in other jurisdictions either upheld the legality of the litigated protections or require an employer to prove that the restrictions will cause actual irreparable harm to particular litigation before the NLRB, a hard standard for an employer to meet.  A number of cases are pending addressing these issues which will ultimately have to be determined by the U.S. Supreme Court.

This article is part of our October 2025 Newsletter. 

View the newsletter online

Download the newsletter as a PDF