On many fronts, Americans have been inattentive to the strength of the institutions that undergird our democracy. To the extent that we have focused on democracy-affirming activities as a society, we have fixated primarily on those related pretty narrowly to elections: the mechanics of voting, campaign finance, and political misinformation. These are all important challenges, but they occur relatively far downstream in the process of building a democratic ethos in our nation. All the while, we have allowed a critical upstream institution—the labor movement—to undergo a slow and painful downward spiral. That spiral has come at the hands of conservative judges, big corporations, and the inattention of institutions and Americans who are not directly engaged with unions. And now that our democracy is clearly under great stress as a result of the early actions of the second Trump Administration, the long-simmering threats to the labor movement take on even greater significance.

It is critical that we understand these threats and act quickly to stanch the bleeding because labor is one pro-democracy institution that has held firm through this most recent attack. Labor unions have been behind many of the highest-profile cases challenging the actions of the second Trump Administration, from its attack on federal workers’ civil service protections to the dubious creation of the so-called Department of Government Efficiency (DOGE) to its aggressive immigration enforcement profiling farm workers and day laborers. When it comes to DOGE, labor has also sued to stop it from gaining unprecedented access to sensitive federal information systems, significantly reducing the federal workforce, and dismantling entire federal agencies like the Consumer Financial Protection Bureau and the U.S. Department of Education. As the Trump Administration has grown emboldened to attack any sort of dissent and seek retribution against perceived enemies, organized labor’s willingness to protest legally questionable and harmful administrative actions is all the more important.

Indeed, organized labor’s display of backbone coincides with historic American approval of unions. At a time when the public is increasingly wary of all kinds of institutions, organized labor is bucking that trend. Gallup suggests that public approval of labor unions is approaching its post-World War II peak of 75 percent in the 1950s, and recent surveys have found that large percentages of workers would support unionizing their workplace if they could. Union win rates in National Labor Relations Board (NLRB) elections have soared to about 70 percent. President Biden proudly promised to be “the most pro-union President leading the most pro-union Administration in American history,” and took symbolic steps like releasing a video in 2021 encouraging workers at an Alabama Amazon facility to vote to join a union and walking a United Auto Workers (UAW) picket line—a first for a sitting President. He also pursued a robust agenda of pro-union policy initiatives through legislation, executive actions, and enforcement.

Even President Trump and the Republican Party are recognizing the public’s support for unions and making some attempts to court labor and union voters in particular, though Trump and most of the party still oppose policies that would actually support unions and working people. While Trump and his erstwhile closest adviser, Elon Musk, openly discussed firing striking workers prior to the election, the President still gave Teamsters president Sean O’Brien a coveted keynote address at the summertime Republican National Convention and chose Teamsters-backed Congresswoman Lori Chavez-DeRemer for Labor Secretary. Vice President J.D. Vance has called the decline in private sector union membership a “tragedy” and appeared on a UAW picket line during the union’s strike against the “Big Three” automakers. And the Trump White House recently issued new guidance largely maintaining the use of project labor agreements on federal construction projects, keeping most (but not all) of a Biden Administration policy backed by the nation’s building trades unions.

Given this renewed focus on labor, it’s all the more striking that the New Deal-era law underlying workers’ right to organize—the National Labor Relations Act (NLRA)—is facing existential threats from legal challenges. The NLRA has been chipped away at for decades, but it remains the only federal legislation that protects basic organizing rights for private sector workers. Now, a stunning variety of employers—including some who have been lauded for their employment practices—have mounted unprecedented attacks on this and other bedrock labor and employment laws. While these attacks may have once seemed frivolous, they are nevertheless groundbreaking, especially the ones building upon a series of recent U.S. Supreme Court decisions that have narrowed the authority of federal agencies. If successful, this assault could fundamentally reshape the labor law landscape that protects workers and communities.

It’s not just union workers (and those who want to join a union) who would lose out if these efforts are successful. For one thing, the NLRA protects all employees who work together to improve their wages, hours, and working conditions, regardless of whether they are part of a union. Labor and organizing rights—rights that we have promoted throughout the world—also help create a level playing field for U.S. workers, trade, and U.S. competition. But perhaps most importantly, they are fundamental to a functioning democracy. Strong unions are one of a dwindling number of institutions capable of mounting a defense for workers against structurally more powerful employers and for democracy overall. At a time when the pillars of our democracy are under increasing pressure, we must take seriously these attacks on the NLRA, their potential ramifications for workers, and what they could mean for our democracy.

“Labor’s Magna Carta”

The NLRA has been the cornerstone of federal protections for workers since its passage in 1935 as the seminal federal law governing private sector labor relations in this country. The NLRA guarantees most private sector workers the right to form, join, or assist labor organizations; the right to bargain collectively through representatives of their choosing; and, even without a union, the right to engage in concerted action—that is, to act together or for each other to improve wages and working conditions. The NLRA requires employers to recognize unions that have majority support in the workplace and mandates that both parties bargain in good faith.

Here’s how the NLRB works in practice. There are five members of the NLRB (collectively, “the board”) who adjudicate appeals related to union elections and unfair labor practices and authorize the filing of injunctions in district court to prevent unfair labor practices, like the unlawful firing of union organizers, from doing irreparable harm before the board can decide the merits of the case. In most situations, the board acts as sort of a court of appeals that reviews decisions from the agency’s own administrative law judges. The members are appointed by the President to fixed five-year terms and must be confirmed by the Senate. The President designates one member as the chair, and vacancies are traditionally filled such that there are eventually three members of the President’s party and two of the opposing party, often paired for confirmation purposes. The board needs a quorum of three members in order to issue decisions.

The NLRB’s general counsel is a uniquely powerful position and operates independently of the board. The general counsel supervises the NLRB’s field offices, which process and investigate incoming charges; most of these charges are settled and do not require litigation. If cases are not resolved, the general counsel, as the agency’s chief prosecutor, is exclusively authorized to bring cases before the administrative law judges, who hold hearings and issue decisions. In routine cases, those administrative decisions can be the beginning and end of the line.

While the NLRB is not perfect, it has for decades given workers a place to take their claims, such as when their employers interfere with organizing campaigns or retaliate against them for their collective action. In the Biden Administration, the board’s decisions strengthened protections and remedies when workers were fired or otherwise retaliated against for engaging in union activities.

It’s clear that without the NLRA’s protections, workers would lose their federally protected right to organize, form unions, and fight for a first contract. Employers could refuse to recognize or negotiate with unions without legal consequences, and they could arguably retaliate against workers who joined unions. Without protections from retaliation, union organizing would become harder, and without any requirement that employers bargain with a union in good faith, parties would be even less likely to reach an agreement. In essence, without the NLRA, meaningful federal labor rights would cease to exist in the United States.

To be sure, the NLRA could and should be improved. The co-authors of this article helped lead various aspects of the Clean Slate for Worker Power, a project to develop a long-term vision of labor law that works for all by offering innovative policy solutions and promoting creativity and experimentation at the state and local level that expand organizing opportunities for all workers. Nearer term, the U.S. labor movement has championed the Richard L. Trumka PRO Act, a set of comprehensive labor law reforms. The PRO Act would allow union members to participate in secondary strikes initiated by employees from a different labor organization, prohibit company-sponsored “captive audience” meetings, and provide a process to ensure that unions and employers reach first contracts within a certain time frame. President Biden pledged to sign the PRO Act if it passed, and 44 Democrats and two independents co-sponsored the legislation in the Senate. Republican Senator Josh Hawley recently even introduced legislation that would codify one small portion of the PRO Act—first-contract arbitration—into law. The groundswell for major reforms to the NLRA is real.

The Relentless Attacks on the NLRA

It’s notable that, despite growing support for pro-worker reform, the NLRA is facing perhaps its greatest crisis since backlash in the 1940s led to the anti-labor Taft-Hartley Act, which amended the NLRA as originally enacted. For decades, both employers and unions have vigorously defended themselves against charges brought under the NLRA in individual cases, just as the law intended. But in recent years, employers of all stripes have begun attacking the basic underpinnings of the NLRA as well. These attacks accelerated after a series of U.S. Supreme Court decisions took broad swipes at administrative decision-making and upended decades of legal precedent.

No surprise, the litigation attack that is arguably furthest along in the courts was launched by Trump’s billionaire benefactor Elon Musk, before he became an integrated arm of the U.S. government. Musk’s SpaceX was the first of a series of employers, like Amazon and CareOne, to argue that the NLRA itself is unconstitutional on multiple bases.

One of these employers’ arguments cites the Supreme Court’s decision last term in SEC v. Jarkesy. Congress has long created laws that allow cases to be decided by agency judges instead of going to federal courts. These agency judges, including the NLRB’s administrative law judges and board structure, provide a more efficient and accessible way of resolving disputes and create a developed, coherent body of law on specialized matters, without overburdening the federal court system. The Supreme Court called the authority of these agency judges into question in Jarkesy, where a 6-3 majority found that use of the Securities and Exchange Commission’s (SEC) administrative tribunal violated the defendant’s Seventh Amendment right to a jury trial in federal court, a claim the Supreme Court had rejected with respect to the NLRA 90 years earlier. The Jarkesy decision nonetheless laid the groundwork for this renewed, if weak, attack against the NLRA.

These employers are also making two concerning claims about the structure of the board itself. In most of these cases, they argue that the structure is unconstitutional because the board’s administrative law judges are removable only “for cause” by the members of the board, who are themselves only removable “for cause” by the President. The employers claim that Article II of the Constitution prohibits judges from being protected by “two layers” of such “for-cause protection.” And separately, the employers argue that Article II grants the President the power to fire board members at will, despite the NLRA stating otherwise.

Thus far, the success of these claims has been mixed. Federal district courts in Texas and the District of Columbia have ruled that the protections shielding administrative law judges from dismissal are unconstitutional. Outside the NLRA context, the Fifth Circuit has also struck down the SEC’s two-layer job protections for administrative law judges. The Trump Administration has publicly stated that removal protections violate Article II, and it has directed the Justice Department not to defend them. However, some federal courts, including the Third, Sixth, and Ninth Circuits, have rejected the removal claims and Seventh Amendment challenges to the NLRB. The removal protection issues are likely to reach the Supreme Court for resolution.

Taking a step back, additional attacks are brewing, not only from SpaceX and Amazon, but also from companies that have staked their reputations on purporting to create good jobs for their workers, like Trader Joe’s and Starbucks. Across various cases, these employers are challenging the constitutionality of the NLRA on multiple grounds. Some are arguing that the NLRB violates the separation of powers by mixing executive, judicial, and legislative functions in one agency. Others, like Amazon and even the U.S. Postal Service, are invoking the nondelegation doctrine, which theoretically forbids Congress from granting broad authority to agencies without an “intelligible principle” to guide decision-making. They argue that more than 90 years ago, Congress unlawfully delegated its legislative powers to the NLRB without clear guidelines. While the Supreme Court has not struck down a law under the nondelegation doctrine since 1935, the Court has recently agreed to hear a case unrelated to the NLRA that could revive the doctrine.

When it comes to nondelegation, the NLRA has perhaps its strongest defense: The law itself provides uniquely clear guidelines. The text of the law makes clear that the NLRA intends to encourage collective bargaining:

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

And yet, while the NLRA is anything but unclear in its delegation to the board, the Supreme Court will likely have the final say on this issue, too.

Finally, the most immediate challenge to the NLRA was launched not by business but by President Trump himself, when he took the unprecedented step of attempting to fire Gwynne Wilcox, a Biden-appointed board member, in the middle of her term without cause. The NLRA provides that board members can only be terminated “for neglect of duty or malfeasance in office, but for no other cause.” Nearly a century ago, the Supreme Court upheld congressionally established “good cause” removal protections for members of independent adjudicative agencies. But in firing Wilcox and others, the Trump Administration has embraced a formal challenge to that precedent—something that the Fifth Circuit has signaled it is open to revisiting. While a district court reinstated Wilcox, and the en banc D.C. Circuit Court of Appeals refused to stay that decision, the Supreme Court granted a stay, leaving the board once again without a quorum. The main thrust of Wilcox’s case remains ongoing and is pending before the D.C. Circuit Court.

If President Trump is ultimately successful in firing Wilcox, the result will be to effectively sideline the board—at least until new members are nominated and confirmed. While it is not unusual for the board to go periods without a quorum, the situation has never been forced through a firing. In these circumstances, some activities will continue—such as regional office investigations and even administrative hearings—and other duties will be assigned to the chief administrative law judge. But the board will not be able to issue decisions, vote on regulations, or respond to other requests for review. In short, some of the board’s most impactful work would be disabled. Even if a new board is established, board members will likely fear disagreeing with Administration positions because they can be fired at will. This fear would be compounded by an Administration that is routinely firing anyone who voices dissent. And possible cuts to the agency’s funding, like budget cuts throughout the federal government, might significantly curtail its ability to function.

The Fallout for Workers

Taken together, these actions could have a range of significant and complicated impacts for private sector workers. In the near term, the lack of a quorum—or a functioning board—will act as a partial repeal of the NLRA, which, at least for a time, would deny workers a definitive board finding if their rights are violated. If the courts allow President Trump to fire board members without cause and thereby exercise control over their legal judgments and decisions, Trump will have succeeded in remaking independent agencies established by Congress to serve important functions into something much more political. Beyond that, if the litigation challenges are successful, the NLRA may very well be on life support, with a board that has even less authority than before.

Perhaps the most disturbing litigation outcome would be a lack of federal NLRA enforcement. If the NLRA’s enforcement scheme is found to be unlawful, could the general counsel enforce anyone’s rights? Remember, workers have no right to bring a private action (those claims must be brought by the general counsel), and the NLRA has no provision allowing even the general counsel to skip the administrative process and proceed straight to federal court beyond certain emergency circumstances. Or would the NLRA be essentially rewritten by judges to line up with their reengineered administrative law jurisprudence, perhaps by excising part of the enforcement scheme or by allowing board members or administrative law judges to be fired, despite Congress’s clear intent to the contrary?

Arguably, there cannot be rights without remedies, and thus, parties could argue that the general counsel, or even workers themselves, can in fact bring their complaints in federal court. While courts have generally been skeptical of such arguments, they may be more amenable to them if the NLRB’s enforcement scheme is rendered unlawful in some manner, leaving regulated parties with rights under the law, but no means to enforce them. But even in this unlikely scenario, courts would have to contend with the reality that Congress intended an administrative tribunal to adjudicate these disputes, and that the tribunal did so for nearly 90 years under the NLRA. Complications—both legal and practical—would abound. Would courts be bound by decisions of the board? Would the board have the resources to bring private litigation against companies with much deeper pockets? What standard of review would apply to appellate courts reviewing trial court decisions on NLRA cases? Thus, even in a best-case scenario where workers’ rights are not completely undermined by the incapacity of the board or its remedies regime, the effectiveness of legal workarounds is highly questionable.

In another possible outcome, the Court might find that administrative law judges cannot have two layers of for-cause protection—particularly given that the Trump Administration has stopped defending the position—or that certain remedies would trigger nondelegation concerns. The NLRA contains an express severability provision that would allow the Court to potentially remove one part of the law but keep the rest. Courts also generally apply a presumption of severability, meaning that in such cases they try to preserve the remainder of the statute, as the Supreme Court did when it recently found that the head of the Consumer Financial Protection Bureau could be fired without cause despite statutory language to the contrary. But how this presumption will play out if provisions of the NLRA that are central to the statute are ruled unconstitutional remains to be seen.

Rays of Hope—and New Perils

But even in a worst-case scenario, with our bedrock federal labor law neutralized, all may not be lost. In fact, the business community’s all-out assault on the NLRA may turn into a “be careful what you wish for” situation in some respects.

For years, the Supreme Court has read the NLRA to block certain state and local laws that govern labor actions. While the NLRA has no explicit provision preempting state and local labor laws, courts have created broad doctrines that block any such laws “arguably protected or prohibited” under the NLRA, as well as any state or local regulations that tip the “intentional balance” between labor and management that was struck by Congress when it enacted the NLRA. If the NLRA’s entire enforcement scheme is unlawful, preemption makes little sense because the board can no longer enforce labor law—not temporarily, as when it lacks a quorum, but permanently. Likewise, if significant parts of the NLRA, like its enforcement provisions, are ruled unlawful, then broad sweeps of judicially created preemption rules governing state and local labor actions could also fall. Put another way, the balance that Congress attempted to strike when enacting the NLRA arguably cannot survive when there is no enforcement mechanism for the act. Finally, even if the President can fire members of the NLRB, strip the board of a quorum, and push it into a kind of “zombie” state, there is a strong argument that states should be free to regulate at least where Congress intended conduct to be regulated.

In this scenario, states or localities can step in and establish their own pro-worker labor laws, and lawmakers in three states (California, Massachusetts, and New York) are currently considering so-called “trigger laws” that would take effect under a variety of scenarios where the NLRA is hobbled. Crucially, states could go above and beyond mirroring the NLRA’s terms and instead more fully embrace its goal of “encouraging the practice and procedure of collective bargaining.” States can, for instance, pass full collective bargaining schemes that include broader swaths of workers and more meaningful remedies than the NLRA, or laws that require employers to remain neutral in bargaining campaigns, giving workers the fair and free right to join a union if they so choose. Some states may want to establish sectoral bargaining regimes that empower workers to bargain at the level of an industry or sector and extend collective bargaining agreements to all workers similarly employed—a concept popular in many other countries and even embraced by some on the new right. If states coordinate their actions—say, by requiring government contractors and goods suppliers to respect union rights—they can leverage their collective economic power to have impacts that extend beyond their own boundaries. In states where elected leaders do not support worker-friendly reforms, state ballot initiatives or constitutional amendments could be used to adopt them anyways, and simply strengthening the democratic process for initiatives could be an important tool.

On the other hand, other states could use the lack of a regulatory scheme to undermine workers’ right to organize, building on a successful decades-long push to pass right-to-work laws or using other mechanisms that are now generally preempted by the NLRA, like tort law, as weapons to punish workers for engaging in strikes or work stoppages. But all is not lost even there. If the NLRA is shockingly declared completely unconstitutional, the First Amendment right to freedom of association should still protect workers’ bedrock rights to join unions. Beyond that, even in right-to-work states, the First Amendment could bolster the rights of workers and their unions to engage in a range of other conduct even without the NLRA. In such a case, the law could allow for more “secondary boycott” strategies that are currently preempted by the NLRA—for example, exerting pressure on an employer by peacefully picketing at unrelated businesses, or exploring other acts of solidarity between workers to pressure each other’s employers (though state tort law—prohibiting, for instance, interference with business relations—may be weaponized). And despite political opposition, pro-worker ballot initiatives are remarkably popular, providing opportunities for creative pro-worker-organizing legislation in all jurisdictions. States and localities could also use procurement authorities to require those with contracts with their governments to engage in certain pro-worker activities, such as hiring local workers for projects, utilizing project labor agreements, or agreeing to neutrality, actions that are sometimes now preempted by the NLRA.

Let’s remember: It was workers engaging in exactly these kinds of activities in the 1930s, leading to thousands of strikes that were much more disruptive than modern strikes, that compelled passage of the NLRA in the first place. In a way, the NLRA was viewed by the business community as a force that would moderate the kinds of actions that unions could undertake in the absence of any regulation of the right to collective action.

And in right-to-work states and states where we see the business community and the political leadership align to fight unionization, workers are still finding ways to organize. For example, in Texas, teachers have no right to collective bargaining; their unions only have a right to “meet and confer” with school administrators. Yet, even under those limitations, more than 130,000 educators are members of the teachers’ unions in the state. These state organizations have used the power of their collective membership to win higher wages, retirement benefits, civil rights protections for students, and other important laws by lobbying the Texas state legislature. And it’s not just Texas. Longtime workers’ rights advocates Erica Smiley and Sarita Gupta wrote about similar efforts in West Virginia in their recent book, including a teachers’ work stoppage that won a 5 percent raise for all state workers—not just teachers—while preserving key benefits. That stoppage was propelled by a grassroots movement among the teachers, not by the union leadership. Removing the NLRA doesn’t remove the worker demands that once sparked its creation.

To be sure, without federal labor law there would be major gaps in protections, particularly around the legal obligations of employers to recognize and bargain with unions. But while the disparity in worker protections might grow, First Amendment jurisprudence could still create opportunities for organizing in all states.

The Labor Movement and Democracy

Despite these potential innovations and backstops, make no mistake: It would be devastating for workers to lose the bedrock protections of the NLRA, particularly without a viable federal alternative or widespread state planning to prepare for this scenario. Equally concerning, the fall of the NLRA would have troubling consequences for our democracy.

As explained above, at a time when support for unions is near an all-time high, the likelihood that the NLRA will be significantly weakened is, surprisingly, also high. This paradox is particularly poignant given unions’ ability and willingness to challenge the growing authoritarianism of the Trump regime, which is becoming alarmingly emboldened to attack perceived enemies for past or present disagreements. Labor unions right now stand not only as a democratic check on unconstrained capitalism, but also as an increasingly lonely core institution that has remained strong amid the collapse of structures that normally serve as democratic oppositional voices.

That’s no surprise because historically, around the world, labor unions have been central not only to democracy in the workplace, but also to functional democracies overall. Even with the low density of unionization in the United States, unions are arguably the largest institutions representing the economic interests of lower- and middle-income earners, and vibrant democracies require the participation of individuals across the income spectrum. And, as one scholar put it after reviewing the international political science literature in the late 1980s, the labor movement is often a key player in the formal or informal pacts that facilitate transitions to democracy or even “redemocratization” after periods of authoritarian rule. In one iconic example, the Polish trade union movement Solidarity, led by labor activist and Nobel Peace Prize winner Lech Wałęsa, played a substantial part in pushing back against Poland’s Communist rulers. Likewise, the South African Democratic Teachers Union was an important force in the fight to end apartheid.

In the United States, the labor movement has a history of serving as the most fundamental support for democracy and check on corporate dominance. Unions can make a real difference in delivering for workers and ensuring that democratic processes include labor. It is well documented that states with higher levels of unionization have higher minimum wages, higher median household incomes, and higher shares of workers who successfully obtain unemployment insurance benefits when they qualify. But union density also correlates positively with the right to vote: High union density areas tend to have fewer voting restriction laws. Meanwhile, research suggests that union members—and the people around them—are more likely to vote in elections. After all, collective bargaining provides workers a very tangible window into what it’s like to have a real say in the world. Beyond their benefits to the workers they represent, strong unions have a positive economic spillover effect, lifting up families and communities. And, as scholars and even the burgeoning new right have recognized, growing economic inequality threatens the public’s belief in democracy and capitalism.

But warning signs are flashing. Even before these attacks on the NLRA, the United States had very low union density, ranking in the bottom third of countries in the Organization for Economic Cooperation and Development, a forum of 38 democracies with market-based economies. Moreover, U.S. union density would be even lower if only private sector union density were considered, and it may decline further in light of the Trump Administration’s attempt to eviscerate federal employee unions.

The relationship between strong democracies and strong labor movements is reciprocal: You can’t have a strong democracy without a strong labor movement, and you can’t have a strong labor movement without a strong democracy. Right now, our democracy is being tested like never before in modern history. How and indeed whether we can have a strong labor movement while the NLRA faces deep legal uncertainty has profound implications for how we meet this moment. We hope that other institutions step up to serve as stalwarts of our democracy, but unions have an indispensable role to play. By utilizing the very powers of our democracy that have allowed unions to stand firm in the face of federal attacks, and by capitalizing on the strong American support for unions, we can strengthen the labor movement, build power for workers, and improve the health of our democracy.