The SpaceX Labor Commission is suing the National Labor Relations Board for violating the Fourth Amendment and the Fourth Circuit in the U.S. Labor Relations

“The NLRB routinely exercises authority to prosecute alleged violators of federal labor law, define the legal standards that govern the prosecutions, and weigh the facts necessary to find a violation — with only limited judicial review by Article III courts,” attorneys for SpaceX wrote in a court filing.

The companies are trying to short-circuit the proceedings with a court order that would cause irreparable harm. The company has a deadline for the district court to make a decision, but the NLRB said that it wasn’t irreparable harm because it was proceeding through an administrative process.

The George W. Bush-appointed Judge Richman pressed Michael Kenneally about why the company rushed to an appeal, rather than letting the case progress in a lower court. Kenneally said SpaceX waited as long as it felt it could to bring its challenge and accused the government of leaning on procedural arguments because it couldn’t defend the NLRB’s constitutionality. Graves was skeptical. “That sounds to me about like the argument that, ‘well, procedure doesn’t matter if I win on the merits, so just skip right over procedure,’” he said.

The National Labor Relations Board has taken an assertive approach to protecting workers’ rights while Joe Biden was president.

The labor agency is being changed by a corporate-led effort. On Monday, attorneys for the two companies will try to convince a panel of judges at the Fifth Circuit Court of Appeals that the labor agency, created by Congress in 1935, is unconstitutional.

A ruling in favor of the companies could make it much harder for workers to form unions and take collective action in pursuit of better wages and working conditions.

Complicating matters is the fact that Donald Trump has named Musk to co-lead a new commission focused on removing government bureaucracy, slashing spending and jobs. Whether the NLRB is one of the agencies Musk will advise on remains unclear.

The company refused to bargain collectively with the Amazon Labor Union. Workers at Amazon’s Staten Island, N.Y., warehouse voted to unionize in 2022.

Abruzzo has taken a broad view of the protections labor law provides private-sector employees. She has worked to remove barriers to organizing, most recently winning a board ruling outlawing “captive audience” meetings, or mandatory meetings at which employers try to dissuade workers from unionizing.

“We are trying to hold violators of our statute accountable,” she said at the National Press Club in October. If the agency wasn’t allowed to do its job it would be chaotic.

SpaceX, Amazon, and other companies have no interest in the Trump-Robb general counsel role after the Air Traffic Controllers’ Strike

Trump is expected to replace Abruzzo with someone friendly to employers, who will set a new tone for enforcement. Trump picked Peter Robb, a management-side labor attorney, to be his lead counsel for the Reagan administration during the air traffic controllers’ strike.

In the SpaceX and Amazon cases, all expectations are that a Trump-appointed general counsel will not fight any ruling favorable to the companies. However, similar lawsuits filed elsewhere in the country could result in conflicting court decisions.