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national labor relations board
'Legislating From the Bench,' Supreme Court Greenlights Trump Firing of Labor Regulators
Justice Elena Kagan wrote in her dissent that the president believes the 90-year precedent "should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
May 22, 2025
In a decision that alarmed legal experts, the U.S. Supreme Court on Thursday blocked the reinstatement of two labor regulators fired by President Donald Trump in apparent violation of federal law intended to prevent such ousters for political reasons.
The Trump administration asked the high court—which has a right-wing supermajority—to block orders from the District Court for the District of Columbia against the president's removal of Merit Systems Protection Board (MSPB) Member Cathy Harris and National Labor Relations Board (NLRB) Member Gwynne Wilcox.
An unsigned two-page opinion—from which the three liberals dissented—provides the Trump administration that relief, but the majority declined to take up the cases more fully, meaning they will play out U.S. Court of Appeals for the D.C. Circuit. The Hillnoted that the move "leaves both agencies without a quorum required to conduct certain business in the meantime."
In her fiery dissent, Justice Elena Kagan wrote that "for 90 years, Humphrey's Executor v. United States... has stood as a precedent of this court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control."
While the MSPB and NLRB are the focus of this case, "there are many others," she continued. "The current president believes that Humphrey's should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
"Our Humphrey's decision remains good law, and it forecloses both the president's firings and the court's decision to award emergency relief," Kagan added. "Our emergency docket, while fit for some things, should not be used to overrule or revise existing law."
Big, bad legal news from "the shadow docket." 6-3 overturning the stay in Wilcox, the NLRB case. Less than 2 pages of assertions that have been proven historically incorrect. A preview of expanding presidential power and allowing the Trump removals: www.supremecourt.gov/opinions/24p...
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— Jed H. Shugerman (@jedshug.bsky.social) May 22, 2025 at 5:52 PM
Slate's Mark Joseph Stern similarly stressed the significance of Thursday's development on social media, writing that "the Supreme Court just effectively overruled 90 years of precedent on the shadow docket, greenlighting Trump's firing of multimember agency leaders while their cases are pending—despite Congress' effort to protect them against removal. A huge decision."
"The Supreme Court goes out of its way to say that its order today does NOT allow Trump to remove members of the Federal Reserve because it is 'uniquely structured' and has a 'distinct history tradition,'" he noted. "I do not think those distinctions hold water."
The right-wing justices' opinion states that "Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee."
"We disagree," the court's majority said. "The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States."
Multiple other court watchers echoed Stern's take on social media.
They’re not only overturning precedent on the shadow docket, but ~deciding~ other cases in a non-binding (dicta) way to give cover for these actions. Today, this unnamed group of conservative justices, not even claiming this is “per curiam,” say that the Federal Reserve is different. Sure.
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— Chris Geidner (@chrisgeidner.bsky.social) May 22, 2025 at 5:12 PM
"I don't mean to be a caricature, but this just isn't law. The Supreme Court is always making policy. But this is beyond," said Noah Rosenblum, a New York University associate law professor law, summarizing the decision. "'This dicta in an emergency order will reassure the markets but just, uh, trust us on the law here, OK, no we're not overruling Humphrey's yet, and when we do we'll spare the Fed.'"
Christine Kexel Chabot, a Marquette University associate law professor law, said: "The court is legislating from the bench: It has eliminated removal restrictions it finds unimportant while keeping those it finds too consequential to kill (the Fed). Article II provides an undifferentiated grant of 'the executive power,' not one that applies to the NLRB and excepts the Fed."
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'Technofascism': Whistleblower Says DOGE Goons May Have Taken Private Labor Data
"If the plundering of Americans' data wasn't concerning enough, the targeted, physical threats and surveillance... takes this to another level," said the whistleblower's attorney.
Apr 15, 2025
Despite finding a letter with "threatening language, sensitive personal information, and overhead pictures of him walking his dog" taped to his door, a technology expert at a federal labor agency has become a whistleblower, urging U.S. officials to investigate data practices by President Donald Trump and billionaire Elon Musk's so-called Department of Government Efficiency.
NPR on Tuesday published a lengthy report about whistleblower Daniel Berulis' submission to Congress and the U.S. Office of Special Counsel sounding the alarm over DOGE employees' recent activities at the National Labor Relations Board (NLRB)—which the president also has tried to effectively shut down, leading to court battles.
While DOGE didn't respond to NPR's request for comment, Tim Bearese, the NLRB's acting press secretary, claimed that the Musk-led entity had not requested access to the agency's system, and the NLRB had not granted it. He also said the agency investigated after Berulis raised concerns but "determined that no breach of agency systems occurred."
"As an agency protecting employee rights, the NLRB respects its employee's right to bring whistleblower claims to Congress and the Office of Special Counsel, and the agency looks forward to working with those entities to resolve the complaints," he added.
Those who spoke with NPR struck a much different tone. The reporting features interviews with Bearese, his attorney—Andrew Bakaj of Whistleblower Aid—and dozens of other experts in tech, law enforcement, the labor movement, and government. It adds to mounting worries about what DOGE is doing across various agencies under the reign of the richest man on Earth.
"I can't attest to what their end goal was or what they're doing with the data," Berulis—who found evidence of up to around 10 gigabytes of data, or the equivalent of a full stack of encyclopedias, leaving the NLRB system—told NPR. "But I can tell you that the bits of the puzzle that I can quantify are scary... This is a very bad picture we're looking at."
There's always been reason to believe DOGE was hacking govt systems. Now a whistleblower has substantiated it at NLRB, precisely the kind of data compromise labor unions worried about when they sued re DOL.
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— emptywheel ( @emptywheel.bsky.social) April 15, 2025 at 6:26 AM
"The amount of data that was taken is the equivalent to a section of the New York Public Library, and the amount of people it could impact is in the hundreds of millions," Berulis noted in a Tuesday statement from Whistleblower Aid. "Our information systems appear to have been assaulted, and someone with the capacity and mandate to investigate needs to do so."
According to NPR, labor law experts "fear that if the data gets out, it could be abused, including by private companies with cases before the agency that might get insights into damaging testimony, union leadership, legal strategies and internal data on competitors—Musk's SpaceX among them. It could also intimidate whistleblowers who might speak up about unfair labor practices, and it could sow distrust in the NLRB's independence."
Russ Handorf, who spent a decade in cybersecurity roles at the Federal Bureau of Investigation, reviewed Berulis' records and told NPR that "all of this is alarming" and "if this was a publicly traded company, I would have to report this [breach] to the Securities and Exchange Commission."
Sharon Block, a former NLRB board member and now executive director of Harvard Law School's Center for Labor and a Just Economy, said that "there is nothing that I can see about what DOGE is doing that follows any of the standard procedures for how you do an audit that has integrity and that's meaningful and will actually produce results that serve the normal auditing function, which is to look for fraud, waste, and abuse."
"The mismatch between what they're doing and the established, professional way to do what they say they're doing... that just kind of gives away the store, that they are not actually about finding more efficient ways for the government to operate," she told NPR.
It's not just DOGE affiliates, including Musk, who may have access to the data taken from federal agencies, including the NLRB. NPR reported that "if the data isn't properly protected after it leaves the agency or if DOGE left a digital door open to the agency itself, data could also be exposed to potential sale or theft by criminals or foreign adversaries."
In Whistleblower Aid's statement, Bakaj said that "what is particularly alarming is that in addition to private data being exfiltrated out of NLRB systems—and within minutes of DOGE personnel creating service/user accounts in NLRB systems—someone or something within Russia appeared to attempt to login using all of the correct credentials (e.g. usernames/passwords) on several occasions. This near real-time unlimited access by Russian actors heightens concerns to a level not previously seen and could have destroyed the agency's entire infrastructure in a matter of minutes."
"If the compromise of American's data wasn't concerning enough, the targeted, physical threats and surveillance of my client takes this to another level," he added. "It is time for Congress to act and investigate to keep our democracy from slipping away, something that could take generations to repair."
While NPR readers called the report "sickening" and shared warnings of "technofascism," there is also some optimism in this story: Berulis hopes that he not only prompts a probe but also provides a roadmap for other government employees to come forward.
"I believe with all my heart that this goes far beyond just case data," the whistleblower said. "I know there are [people] at other agencies who have seen similar behavior. I firmly believe that this is happening maybe even to a greater extent at other agencies."
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Amazon Rebuked for 'Reckless' Lawsuit Against Product Safety Agency
"Amazon wants to eliminate the Consumer Product Safety Commission so it can sell dangerous, poisonous, and defective crap with no consequences," said one critic.
Mar 21, 2025
Consumer advocates this week denounced a lawsuit filed by e-commerce giant Amazon against the federal agency tasked with promoting product safety and alerting the public to risks, a move that comes amid the Trump administration's war on government regulators.
Amazon's lawsuit, filed earlier this month in a Maryland federal court, claims that the U.S. Consumer Product Safety Commission (CPSC) is unconstitutional. The Seattle-based company—which raked in $638 billion in 2024 revenue—says it should not be held legally responsible for products sold on its site by third-party vendors.
"Amazon is suffering, and will continue to suffer, irreparable harm from being subjected to an order issued by an unconstitutionally structured agency," the company's complaint states.
"Let's be real: Amazon would gleefully sell products that could kill your kids for a 5-cent profit."
Last July, the five CPSC commissioners unanimously determined that Amazon is "a 'distributor' of products that are defective or fail to meet federal consumer product safety standards, and therefore bears legal responsibility for their recall" under the Consumer Product Safety Act (CPSA). More than 400,000 products were subject to the CPSC order, including "faulty carbon monoxide detectors, hairdryers without electrocution protection, and children's sleepwear that violated federal flammability standards."
In January, the CPSC issued a decision and order outlining steps Amazon must take "to notify purchasers and the public about hazardous products for which the commission determined Amazon was a distributor under the CPSA."
Critics allege that by suing the CPSC, Amazon is attempting to avoid responsibility for shipping dangerous products to its hundreds of millions of customers.
"Instead of demonstrating its commitment to consumer safety, Amazon has fought the CPSC every step of the way for more than three years, and now it's going to court," Consumer Reports director of safety advocacy William Wallace said this week. "The law is clear that Amazon is a 'distributor' in this case and must carry out a recall."
Amazon just sued @cpsc.gov bc it wants to be held blameless for the safety of third-party-sold products on its platform. That's bad enough. It's also claiming the CPSC's structure is unconstitutional—attacking the foundation on which all its work rests. advocacy.consumerreports.org/press_releas...
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— William Wallace (@wwconsumer.bsky.social) March 18, 2025 at 6:47 AM
Wallace continued:
Amazon wants to be held blameless for the safety of products sold by third parties on its platform, which is bad enough—but what's even worse is that the company is attacking the legal foundation on which the CPSC rests. Amazon's suit suggests the company thinks the people of the United States would be better off without an independent, bipartisan safety agency to enforce our laws and protect consumers from dangerous products. We strongly disagree and condemn Amazon's reckless constitutional claims.
"It's absurd to suggest that because a company hosts a marketplace online it should be exempt from sensible requirements that help get hazardous products out of people's homes and prevent them from being sold," Wallace added. "The court should reject Amazon's arguments. Taking Amazon at its word would mean hazardous products slipping through the cracks, even when they are capable of injuring or killing people."
Wallace's remarks came a day after the CPSC issued warnings for products including a toddler playset due to what the agency says is a risk of serious injury or suffocation death, a mattress posing a fire risk, and a brand of liquid Benadryl whose packaging is not child-resistant.
Amazon and SpaceX—owned by Elon Musk, the de facto head of the Trump administration's Department of Government Efficiency—have also spearheaded lawsuits claiming the National Labor Relations Board, the federal agency tasked with protecting workers' rights, is unconstitutional.
The companies and their billionaire leaders have found an ally in U.S. President Donald Trump, whose administration has signaled that it will not defend the precedent set by Humphrey's Executor v. United States, a 1935 Supreme Court ruling protecting commissioners at independent federal agencies from being fired by the president at will, if it is challenged in court.
Amazon wants to eliminate the Consumer Product Safety Commission so it can sell dangerous, poisonous and defective crap with no consequences. Let's be real: Amazon would gleefully sell products that could kill your kids for a 5 cent profit. Pure evil.
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— Emma Lydon (@emmalydon.bsky.social) March 21, 2025 at 9:18 AM
Georgetown University Law Center professor Victoria Nourse toldThe Washington Post this week that right-wing lawyers are emboldened by the administration's stance, describing lawsuits like those filed by Amazon and SpaceX as "little fires being lit all over Washington."
"What Trump wants and what the companies want is to get rid of all this regulation, period," Nourse added.
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