Labor density, or the share of workers who are members of a labor union, is almost the same in 2025 as before Congress enacted the National Labor Relations Act (NLRA) ninety years ago. The NLRA (or “the Act”) guarantees the right of most private-sector employees in the United States to organize unions, engage in collective bargaining, and strike. The Act constrains the behavior of both the employer and of workers seeking to organize, but employers clearly have the upper hand. There is a way out of the NLRA’s restrictions through a hostile Supreme Court. It would require union leaders to let the NLRA collapse and start all over again by letting Elon Musk win. Let me explain.
The Limits of the NLRA
Union lawyers spend a lot of time counseling their clients on how the NLRA, as amended by the 1947 Taft-Hartley Act, constrains their clients’ proposals to build power for workers. Academics and organizers have long outlined the weaknesses of the current labor law. The NLRA allows only weak remedies. A worker cannot recover damages from their employer if they have been discriminated against. They can only recover back pay and reinstatement if they have been illegally fired. That means that breaking the law becomes an economic choice for employers – one that many happily make to quell a union organizing drive. The NLRA lacks a mechanism for compelling a party to enter into a collective agreement. Union organizing drives often stall out because parties cannot arrive at a first contract. Finally, obtaining any redress for unfair labor practices through the NLRA can take years. That delay leaves low-wage workers without meaningful protections.
"David Dubinsky gives a speech against the Hartley-Taft bill 1947," by Kheel Center, CC BY 2.0
There are other limitations that affect unions and their ability to negotiate strong contracts for their members. For example, the NLRA constrains the ability of unions to engage in effective tactics that would allow them to build power for workers. Those tactics include repeated picketing to force union recognition, secondary boycotts, and entering into hot cargo agreements. The NLRA also prohibits state legislatures, and even the President of the United States, from passing laws or taking actions that might tread on those areas Congress left to the jurisdiction of the National Labor Relations Board (Board) or the economic weapons unions and employers use to enforce their bargaining demands. That means that the NLRA leaves state and territorial constitutional provisions guaranteeing the right to collectively bargain or strike – like this one in Missouri or this one in Puerto Rico – a dead letter. Every Democratic president since Jimmy Carter set out to address these deficiencies. None have succeeded in doing so. Perhaps it is time for the Supreme Court to wipe the slate clean clean and do what Congress has not.
Letting Go of the NLRA
In my paper “The Death of Labor Law and the Rebirth of the Labor Movement” (forthcoming in the Boston College Law Review), I explain how the Supreme Court could use one of the cases that Elon Musk’s company SpaceX is bringing to challenge the Board’s use of administrative law judges as a mechanism to completely set aside the NLRA and with it the restrictions on unions’ organizing tactics. In some ways, I am arguing that it would be better to return labor law to the “law of the jungle.” Here is why.
The most harmful result that the Supreme Court could achieve is to render the NLRB a zombie agency that formally exists, but is hobbled in its ability to protect workers who seek to collectively bargain. Leaving the NLRA standing would mean union lawyers would still have to counsel union leaders on the restrictions contained in the NLRA. Unions would be unable to take advantage of old laws protecting collective bargaining that would go into effect immediately in the absence of the NLRA. Additionally, the agency would be unable to function and provide a modicum of protection to workers seeking to organize as its internal mechanism for deciding cases would be hollowed out.
A federal district judge in Texas already reached this result. That judge ruled that SpaceX was correct in asserting that the administrative law judges (ALJs) that hear cases were without constitutional authority to act. ALJs are officials who preside over labor disputes and issue decisions in NLRB cases. They function similarly to judges, but within the administrative agency rather than the federal court system. The judge also ruled that the use of ALJs is not severable from the rest of the NLRA. In effect, the judge ruled that the NLRA is unconstitutional because it allows the use of ALJs who are not accountable to the president. Of course, that case is on appeal. Other courts have not issued rulings that are quite as broad. Whereas the judge in the Space X matter took a maul to the NLRA, other courts have used a scalpel to carefully deal with administrative and constitutional law matters affecting the Board and its decision-making apparatus.
The reason that the U.S. District Court in Texas’s decision could be good for labor is that it opens up the possibility for states to regulate labor law. If the Supreme Court were to adopt the Texas court’s reasoning and decision, it would activate laws protecting collective bargaining like Missouri’s and Puerto Rico’s to come back to life. Additionally, it would be easier for unions in states where they are strong to advocate for stronger collective bargaining laws, like sectoral bargaining. They would be able to do this while expending fewer resources in campaigning to get Congress to change federal labor law. Finally, the loss of labor rights could serve as a mobilizing agent for Gen Z activists while giving them an outlet for pursuing a new collective bargaining labor law tailored to their circumstances at the statehouse.
The legal wrangling I described above and in significantly greater length in my paper calls an important question for union and labor movement activists to mull over as cases regarding the Board’s future move through the federal court system. What is the best legal strategy for the labor movement to take?
Potential Next Steps for the Labor Movement
Is it better for the Supreme Court to set aside the NLRA or protect it at all costs? This is a difficult question because so much of how organized labor is structured and operates is centered around the NLRA. Additionally, the NLRA can protect workers to an extent given the right circumstances. Most of the time, though, it cannot. Eliminating the Act would force labor to leave what is familiar for an uncertain future. Longtime employer counsel Roger King warned that if U.S. corporations succeed in challenging the NLRA’s constitutionality that it will return labor law to the “law of the jungle.” The fact that an employer advocate is making such a statement should cause the labor movement to reflect about whether employers are now overreaching.
adobe.stock.com by Dilok
Death coming to the Act would bring considerable risks. States like New York would probably expand collective bargaining rights and expand union density from a robust 20.6% to possibly more than 50%-70% of the workforce. However, states with low density such as South Carolina could move to outlaw collective bargaining in the absence of the Act. There is also another legal risk–the Court could move to sidestep the arguments I am making and leave behind a labor board that 1) does not have a quorum, and 2) still preempts from passing stronger laws regulating collective bargaining. Additionally, unions may not be ready to handle the turmoil that comes with life after the NLRA. Finally, some states will pass laws that bar the use of secondary boycotts and other economic weapons, even if they allow organizing and collective bargaining.
These are legitimate concerns, but the fact that labor membership is at the same level today as it was before Congress passed the NLRA should cause labor union leaders to ponder if now is the time to take a risk. Organized labor would be able to make significant gains in blue states, and use the resources that arise from forming strong unions to organize in more hostile environments. Additionally, even though the Court could do away with the NLRA, the anti-injunctive provisions of the Norris-LaGuardia Act would remain. Labor organizers still have the ability to engage in peaceful protests without interference from the federal courts.
Conclusion
My argument is an accelerationist one. I am pointing out that there is a silver lining in the Supreme Court’s hostility to the New Deal state. The silver lining is that the Court, through application of the severability clause, could eliminate the NLRA with the stroke of a pen. Doing so would lift preemption and allow states to regulate collective bargaining free from federal interference. It would also give organizers the easier task of trying to change state law rather than national law. This argument comes with one other benefit. The devolution of powers to the states should appeal to principled conservatives who believe that states are in a better position to regulate economic affairs than Congress.
This argument comes with risk. It would not be easy to let go of nearly ninety years of bargaining practice under a federal statute, but it may be worth it. The faith tradition from which I come teaches that to die is to gain. It celebrates this as a central tenet at Easter time. My paper provides a roadmap for the NLRA to die quickly and swiftly at the pen of a Supreme Court justice who is hostile to labor unions, such as Justice Alito. The question that the labor movement needs to weigh is whether to die is to gain a resurrected worker movement.
