“Houston, We Have a Problem”: An Astronomical Challenge to the Future of Worker’s Rights

Sam Johnson

Edited by Keerthi Chalamalasetty, Maya Perez, Judge Baskin, and Sahith Mocharla

A new frontier of labor disputes recently touched down in the offices of SpaceX. The tech giant––known for its rapid advances in private space flight as well as its controversial CEO, Elon Musk––is engaged in a contentious battle with regulators and its former employees. Upset with what they describe as an unhealthy workplace culture, disgruntled workers sent a memo to a company-wide message board. In it, they spelled out their concerns with both Musk and the company policies they were under [1]. After discovering the identities of the employees, SpaceX promptly fired the parties involved and investigated several others for alleged participation in the situation, ultimately resulting in several suits filed against the company. The resulting case, SpaceX v. National Labor Relations Board (NLRB) (2024), delivered a crushing blow to the future of workers’ rights and administrative law. Through its adjudication case, the Fifth Circuit Court of Appeals radically altered several longstanding structures and guidelines, and uprooted years of precedent regarding presidential removal powers. The pro-SpaceX decision in SpaceX v. National Labor Relations Board is a misapplication of previous cases, and will prove harmful to workers across America.

Elon Musk’s controversial behavior on social media is no secret. Frequent posts, often touching on taboo or unethical subjects, have sparked public outcry, resulting in reputational damages to his companies [2]. Contentious behavior in 2022 by Musk brought heavy complaints from employees at SpaceX, a (private) company in which Musk founded and holds majority ownership. A memo, distributed within the company’s Microsoft Teams communications platform by four employees, spelled out a number of qualms with Musk’s behavior. In part, the disgruntled employees alleged Musk’s behavior in the public sphere, along with an outside sexual misconduct allegation, tarnished the company’s reputation, and “went against SpaceX’s own ‘no assholes’ and ‘zero tolerance’ personal conduct policies [3].” After an internal investigation SpaceX fired the employees responsible for the memo, along with four others who they accuse of lying during the investigation process. These former workers hold that their firing was unjust, since layoffs, demotions and discipline for “protected, concerted activities” is illegal under the policies of the NLRB [4] [5]. In response, SpaceX challenged the structure of the organization, arguing the agency's removal protections for officials are unconstitutional because the president can only remove board members for good cause, not at will.

The NLRB is an independent federal regulatory agency set up under the National Labor Relations Act of 1935. This agency is tasked with assisting employees with workplace disputes, and supporting the needs of unions for a plethora of industries. This assistance comes in several forms. The NLRB provides workers with legal support in litigation battles against their employers, mitigating the need for employees with limited spending power to pay for their own attorneys and representation. The agency pairs that with their federally-granted ability to investigate and adjudicate cases of employer misconduct and abuse, and issue subsequent rulings on their behalf. Finally, and perhaps most importantly, NLRB responsibilities also include assisting unions. NLRB policies prevent employers from discriminating against or preventing workers from engaging in union activities, runs and manages union elections, and delegates collective bargaining agreements. In other words, the NLRB plays a ‘referee’ role in the realm of workplace relations. The NLRB covers a wide group of businesses and workers, even covering most private sector employees, especially those working under larger companies, and employees “engaging in interstate commerce [6].” Notably, this does not apply to specific private sector workers, such as railroad and airline workers (separately) represented by the National Mediations Board); agricultural workers; and federal, state, and local government workers. Corporations have long sought to diminish the power of the NLRB in order to shut down union activities, but have historically been unsuccessful. However, recent activities, specifically by the spacefaring hands of SpaceX are making a demise for the agency quite imaginable. 

This is not the first time the NLRB has been challenged—the inception of the agency brought about a suit of its own regarding its foundational act. The case, National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), was a challenge to the constitutionality of affirmed congressional power to regulate industrial activities under the Commerce Clause in Article I of the Constitution [7]. Jones & Laughlin involved a major steel corporation’s discrimination against its employees who were involved with the prominent steel workers union. Under the newly-passed National Labor Relations Act, all labor management cases that affected interstate commerce were under the jurisdiction of the NLRB. After the agency cracked down on the discriminatory practices of the Jones & Laughlin Steel Corporation, a suit was filed against the constitutionality of the agency’s adoption and power regarding regulating industrial activities. Deciding in favor of the NLRB, the Court asserted that employees have a fundamental right to unionize, which can be protected by governmental agencies, and Congress has the power to regulate industrial activities that restrict interstate commerce. Crucially, the 5-4 decision in favor of the NLRB and Congress represented an implicit justification for the structure of the NLRB, but did not make any concrete judgements on the constitutionality of its structure nor the protections of its members. The Jones & Laughlin decision empowered the NLRB to facilitate settlements between parties, investigate employer wrongdoing and negligence, decide and enforce cases pertinent to workplace disputes, and assist unions in collective bargaining pursuits [8]. While the role of the agency and its operations remained unquestioned, the point of contention still revolves around its internal for-cause removal protections structure for board members and insulated removal protections for administrative law judges. Without said protections, the ability of the entire agency to function effectively and independently is at risk.

Before delving into the complaints of SpaceX and other corporations seeking to challenge the NLRB’s structure, it is important to examine the roles and protections given to the separate agents of the NLRB. Separate from the judicial system outlined in Article III, administrative law judges (ALJs) hear cases of unfair labor practices [9]. Their decisions on these cases are non-legally binding, instead serving as recommendations for policy action by the NLRB board. Only once the board affirms the ALJ’s decision does a ruling become legally binding. The Administrative Procedure Act of 1946, which created the role, has been consistently held up in the courts, and ALJs continue to play a significant role in many areas of the government [10]. Removal of an ALJ must be for “good cause,” a judgment that is determined by a separate entity, the Merit Systems Protection Board (MSPB) [11]. MSPB officials also have limits on an AJL’s removal; “inefficiency, neglect of duty, or malfeasance” are the only qualifications for the removal of an MSPB official, as affirmed by Harris v. Bessent (2025) [12]. This double-layered removal protection structure causes the complicated constitutional questions brought up by SpaceX v. NLRB. 

SpaceX also cited a significant case which lays out support for the removal protections of ALJs. In the landmark Supreme Court case on removal powers, Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2010) , the Court makes clear the constitutionality of protections for ALJs [13]. In the ruling, they state, “whether administrative law judges are necessarily ‘Officers of the United States’ is disputed because ‘many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions… or possess purely recommendatory powers.’” The recommendatory powers of ALJs within the NLRB are non-binding and certainly do not make them executive adjudicators with this understanding of the law. The Court has made no ruling guiding against the double-insulation of ALJs, but the Fifth Circuit, in which the case is being adjudicated, has opted to ignore that pertinent detail.

SpaceX additionally contends that board members of the NLRB are unconstitutionally protected. Board members are subject to the same “for-cause” removal qualifications that ALJs are, which, under Humphrey’s Executor v. United States (1935), is constitutional, if the office in question represents either a quasi-judicial body or a quasi-legislative body [14] [15]. Humphrey’s Executor marked the first defense for presidential removal protections, initially regarding the “for cause” removal protections given to the position of FTC chairman at the time. The quasi-judicial and quasi-legislative body distinction that Humphrey’s Executor makes is important to address. Strangely and significantly, the original case never clearly defined these terms nor subsequently expanded upon them in any opinion issued by the Supreme Court. This lack of clarity has caused ambiguity regarding the meaning of the terms, with Justice Antonin Scalia going as far to say that the distinction was “not a clear one or even a rational one” [16]. Despite this confusion, common interpretations define quasi-legislative bodies as policy-implementing or rule-making authorities, and quasi-judicial bodies as conducting hearings, and issuing adjudication based on findings. The NLRB board is made up of five presidentially-appointed, Senate-confirmed, nonpartisan members, each serving a fixed term of five years. The main roles NLRB board members play are having the “final say” when confirming decisions from the ALJs, as well as enacting the policies of the NLRB. 

Litigants for SpaceX claim this structure entails quasi-executive powers, and any level of removal protections for these members is a violation of separation of powers between Congress, who created the structure of the NLRB, and the president, who is tasked with operating the executive branch. This assessment stems from an assertion that the protections seen in the NLRB’s structure improperly inhibit the president’s ability to execute the duties of the office, and that unconstitutional protections hands executive power to a lower agent. Claims like these are extensions of the “unitary executive theory,” which emphasizes the president’s complete control over the executive branch [17]. Also important is that the Court has signaled the possible demise of Humphrey’s Executor in the coming future. The issuance of a writ of certiorari to Trump v. Slaughter shows the Court’s interest in revisiting the century-old precedent set by Humphrey’s Executor [18]. Even still, lower courts must abide by the current precedent still in place.

Under the “Take Care” Clause in Article II, Section 3 of the Constitution, the president “shall take Care that the Laws be faithfully executed.” [19] According to SpaceX and other NLRB challengers, the structure of the NLRB violates the president’s ability to execute full control over the execution of official acts. This argument originates from several previous rulings, notably Seila Law LLC v. Consumer Financial Protection Bureau (2020), and Free Enterprise Fund [20] [21]. These two rulings marked significant limitations on removal protections within the executive branch. However, the application of Seila Law to SpaceX v. NLRB has been disputed by separate district appeals courts. Seila Law holds that single-director structures must not be insulated from removal. An agency such as the NLRB, holding a multi-member director structure, seemingly would not apply to this precedent. The case emphasized only two exceptions to universal removal powers by the president. Humphrey’s Executor lays out the first exception for “expert agencies led by a group of principal officers removable by the president only for good cause” [22]. The second exception comes from Morrison v. Olson (1988), another fundamental case on removal powers, in which the Court declared “tenure protections to certain inferior officers with narrowly defined duties” to be constitutional [23]. 

Clearly, the structure of the NLRB fits into two separate categories: The exceptions made under both Humphrey’s Executor and Morrison. The five-member board certainly qualifies under the Humphrey’s Executor exception. Concurrent to that decision, the ALJ structure would fall into the Morrison exception. In Lucia v. Securities and Exchange Commission (2018), the Court clearly defines ALJs as inferior officers, stating “the administrative law judges of the Securities Exchange Commission are “Officers of the United States… They have ‘responsibility for an ongoing statutory duty.’” [24]. Due to this characterization, ALJs are considered to hold “significant authority,” therefore qualifying for distinct appointment processes. “Inferior officers” may be appointed to their roles in three ways: selected by the president, by courts of law, or by department heads [25]. Because of this appointment from executive power, an ALJ’s “for cause” removal protection has been consistently upheld, citing the fact that a president’s appointment alone is an executive power over the role. 

The Fifth Circuit’s decision to side with SpaceX in this case heavily relies on Securities and Exchange Commission v. Jarkesy (2024), in which the Court concluded that SEC ALJs perform “substantial executive function” [26]. However, there are significant pertinent differences between the roles of SEC ALJs and NLRB ALJs. While NLRB ALJs play a primarily recommendatory role within the agency, SEC ALJs are able to enforce and administer penalties and subpoenas to responsible parties. This difference is key to understanding the gap between the two offices. The other circuits have consistently agreed that the Fifth Circuit has misinterpreted Jarkesy. Five courts, including the Fifth Circuit, have ruled on whether for-cause protections for ALJs violate the “Take Care” Clause of Article II. The Fourth, Sixth, Ninth, and Tenth Circuits have all agreed on the constitutionality of these protections for ALJs and have subsequently rebuked the decision of the Fifth Circuit. An important case to look at and apply to Jarkesy is Calcutt v. Federal Deposit Insurance Corporation (FDIC) (2023) [27]. In this instance, the Court found two-tier removal protections in the FDIC to be constitutional. The reasoning they provided was the nature of the appointments of the ALJs. Because the ALJs were employed and appointed by the president himself, there was no constitutional violation of the president’s Article II powers. While it is noteworthy that the case was reversed by the Supreme Court, opinions by the justices did not address any issue with the two-tiered protections of ALJs stated in the Sixth Circuit’s decision.

Overturning the protections and decisions of the NLRB is a disastrous development for the future of workers’ rights, not just at companies like SpaceX, but for a plethora of labor fields as well. The NLRB’s demise would force workers to use personal funds to pay for private attorneys, instead of using NLRB-provided counsel. Furthermore, the mass number of cases the NLRB deals with would be decided in federal courts, rather than being adjudicated in ALJ courts. This would make the already slow-paced process of moving through federal courts take even longer. Subsequent cert petitions by the defendants have given the case a second life, relying on the Court to decide whether or not the case will proceed all the way up to the Supreme Court level. However, without a precedent-setting decision by the Supreme Court, lawyers for large corporations such as SpaceX will continue to challenge the NLRB’s structure, taking up precious resources from government and union attorneys. To protect the future of unions in America and the rights of workers, it is crucial that the NLRB’s structure be clearly articulated and upheld.

---

[1] US Labor Board Gives Up Oversight of SpaceX in Victory for Musk, REUTERS (Feb. 9, 2026), https://www.reuters.com/sustainability/sustainable-finance-reporting/us-labor-board-gives-up-oversight-spacex-victory-musk-bloomberg-news-reports-2026-02-09/. 

[2] Carlton Reid, What’s Driving Tesla’s Woes?, WIRED (Mar. 8, 2025), https://www.wired.com/story/whats-driving-teslas-woes/. 

[3] Lora Kolodny, SpaceX Charged with Illegally Firing Workers Critical of Elon Musk, CNBC (Jan. 4, 2024), https://www.cnbc.com/2024/01/04/spacex-charged-with-illegally-firing-workers-critical-of-elon-musk.html. 

[4] Joshua D. Nadreau & Reyburn W. Lominack III, Could SpaceX Change the Labor Board’s Future? Here’s What Employers Need to Know, FISHER PHILLIPS (July 18, 2024), https://www.fisherphillips.com/en/news-insights/could-spacex-change-the-labor-boards-future.html. 

[5] National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).

[6] National Labor Relations Board, What We Do, NLRB, https://www.nlrb.gov/about-nlrb/what-we-do (last visited Feb. 24, 2026).

[7] National Labor Relations Board, Administrative Law Judge Decisions, NLRB, https://www.nlrb.gov/cases-decisions/decisions/administrative-law-judge-decisions (last visited Feb. 24, 2026).

[8] Administrative Conference of the United States, Information Interchange Bulletin No. 035, Administrative Law Judge Basics (Mar. 2024).

[9] Harris v. Bessent, No. 25-5037 (D.C. Cir. Dec. 5, 2025).

[10] Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).

[11] Humphrey’s Executor v. United States, 295 U.S. 602 (1935).

[12] Clara Goldrich, Avoiding SpaceX’s Giant Leap Backwards for Mankind: Why the NLRB Leadership Is Constitutionally Protected and How to Keep It That Way, 91 Brooklyn Law Review 233 (2025).

[13] Adam J. White, Is Humphrey’s Executor Headed for Slaughter?, AMERICAN ENTERPRISE INSTITUTE (Oct. 2, 2025), https://www.aei.org/op-eds/is-humphreys-executor-headed-for-slaughter/.

[14] U.S. CONST. art. II, § 3, cl. 5.

[15] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020).

[16] See [10].

[17] See [12].

[18] Morrison v. Olson, 487 U.S. 654 (1988).

[19] Lucia v. Securities and Exchange Commission, 585 U.S. 237 (2018).

[20] Securities and Exchange Commission v. Jarkesy, 603 US _ (2024).

[21] Calcutt v. Federal Deposit Insurance Corporation, 598 U. S. _ (2023).