We have been tracking the wave of constitutional challenges to the National Labor Relations Board’s (“NLRB” or “Board”) structure and the divergent injunction standards emerging across circuits. (See here, here, here and here.)
In the latest development, on October 31, 2025, the Office and Professional Employees International Union (“OPEIU”) asked the U.S. Supreme Court to review a Fifth Circuit ruling that lets employers effectively shut down NLRB proceedings based solely on the mere existence of potentially unconstitutional job-removal protections for Board members and administrative law judges.
The Fifth Circuit’s approach breaks sharply from multiple other circuits (Second, Third, Fourth, Sixth, Tenth, and D.C.), which have either held or strongly implied—consistent with Supreme Court precedent, according to the OPEIU—that a petitioner must show actual harm before courts will halt agency actions. The Fifth Circuit’s stance invites immediate injunctions in response to routine NLRB cases, which destabilizes the Board’s ability to function across Texas, Louisiana, and Mississippi—even as the D.C. Circuit separately evaluates the constitutionality of those same protections.
The petition squarely asks the Supreme Court to resolve the deepening split and restore a coherent injunctive-relief standard: whether a plaintiff must show compensable harm flowing directly from the removal protections or whether the process itself (i.e., appearing before an allegedly...
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