Facing battles, three large companies challenge NLRB’s constitutionality

In 1937, in the midst of the U.S. Supreme Court’s battles with the New Deal and the “court-packing” controversy, the Court heard a case questioning the constitutionality of
the National Labor Relations Board (NLRB). At that time, the core issue was whether the Commerce Clause permitted the Board to exercise its regulatory authority over businesses that may not be engaged in interstate commerce. In the Jones and Laughlin case, the Court ruled 5-to-4 that Congress had the authority to regulate employers whose operations affect interstate commerce, even if they weren’t directly engaged in such commerce. Since then, the Board’s constitutional authority hasn’t been meaningfully challenged. That is about to change.

Separation of functions

Three of the largest, wealthiest, and most determined companies in America—SpaceX, Amazon, and Starbucks—are defending themselves against unfair labor practice charges by claiming the NLRB is structured in an unconstitutional manner, without regard for its
authority to regulate commerce. All three companies are involved in bitter and protracted battles with the Board on a variety of issues, ranging from termination disputes to First Amendment challenges to claims of agency interference in elections.