A Federal Appellate Court Finds the NLRB to Be Unconstitutional
29th August 2025
The American Prospect, a Voice of the Crust.
The National Labor Relations Act—that pillar of American democracy that gives workers the right to bargain collectively with their employers—was enacted 90 years ago this summer. Its constitutionality was upheld two years later by the Supreme Court, and no successful challenge to its constitutionality has been brought in the subsequent 88 years. Until last week, when the avowedly far-right Fifth Circuit decided otherwise.
To the Left, there is no right but the ‘far-right’. Savor the irony of a ‘pillar of American democracy’ that involves ‘collective’ bargaining–i.e. you have to join the collective (or at least pay them) whether you like it or not, because you are ‘enjoying’ the purported benefits that a union brings you. Even if it costs you your job because the union insists on wages+benefits that the company can’t afford to pay.
Today, the NLRA hovers somewhere between de facto and de jure nullification. It’s been slowly eroding for at least half a century, as employer resistance to it has heightened, and as the penalties to employers for violating its terms have weakened. Currently, the fact that the five-member National Labor Relations Board is down to just two members—not enough to constitute a quorum—means the Board can make no rulings. This enables employers who’ve been found to have violated workers’ rights by lower NLRB administrative courts to appeal those findings and penalties to the Board, which cannot rule on anything—essentially, giving those employers leeway to keep on doing what they’re doing, however illegal it may be.
Ponder the nature of a governmental organization that is specifically designed to favor one side of a ‘negotiation’ over another. Check out the history of the ‘Department of Labor’.
Ponder the existence of ‘administrative courts’ with no basis in the judicial provisions of the Constitution. Read Philip Hamburger’s seminal book, Is Administrative Law Unlawful?
Ponder a system in which ‘workers’ have rights but employers apparently do not. That’s ‘American democracy’ for you.
The reason America is NOT a democracy, but rather a representative republic, is precisely this sort of democratic tyranny–in Jonah Goldberg’s pithy phrase, democracy means that 51% of the population can pee in the soup of the other 49%, and there is no recourse. This is not a new thing; Thucydides is full of instances where democratic Athens indulges in atrocities and pursues policies that can change from day to day because of the whims of their ‘democratic’ government.