Elon Musk is known for blazing new frontiers in space and automobiles. Now he could lead in blazing new government reforms by cutting back unconstitutional power grabs by unelected bureaucrats at the National Labor Relations Board (NLRB).  

The NLRB has been harassing Musk’s SpaceX, and now the company has counterpunched, filing a lawsuit questioning the constitutionality of how the NLRB is structured. 

The Wall Street Journal editorial board explains some of the problems with the NLRB as currently constituted:

Like SEC administrative law judges, the NLRB’s judges can only be removed for good cause as found by a Merit Systems Protection Board whose members can only be removed for “inefficiency, neglect of duty, or malfeasance in office.” Similar to the SEC, the NLRB asserts the power to extract monetary damages from defendants. SpaceX argues that such claims belong in federal court where defendants enjoy a right to a jury trial.

The SpaceX lawsuit also seeks to break new legal ground by taking aim at the NLRB’s combination of adjudicative, legislative and executive power, which it argues violates the constitutional separation of powers and due process. NLRB members rule on charges brought in its administrative courts and decide whether to seek injunctive relief in federal court.

Members of other independent agencies do the same, but SpaceX argues that the NLRB’s procedural unfairness is magnified because the board “has chosen to promulgate virtually all the legal rules in its field through adjudication rather than rulemaking.”

In other words, the board uses internal adjudications to write new labor law. When a party appeals a board decision in federal court, the NLRB then claims that its interpretations of labor law based on its precedents and fact finding deserve judicial deference. Imagine a district attorney writing the law and hearing cases that it prosecutes under that law.

The “accumulation of all powers legislative, executive and judiciary, in the same hands” is “the very definition of tyranny,” SpaceX writes, citing James Madison’s Federalist No. 47. Congress has granted the NLRB and other independent agencies sweeping powers that would have made the founders blanch. But the agencies have also expanded their purview.

If the NLRB loses, this wouldn’t be the first time Biden-appointed regulators are reigned in for overreach. For example, in the landmark Supreme Court case, West Virginia v. Environmental Protection Agency, Biden’s EPA was rebuked for overreaching its efforts to regulate carbon dioxide emissions. Biden’s Federal Trade Commission chair Lina Khan has repeatedly lost in court as she seeks to unconstitutionally usurp more power from the people.

President Reagan said the closest thing to eternal life is a government program. Part of why they live forever is they’re constantly grabbing for more power. Kudos to SpaceX for mounting a counteroffensive.