The structure of the National Labor Relations Board is unconstitutional, a Texas federal judge held last week, due to the removal protections afforded to its administrative law judges and five-member board that cut against recent decisions of the U.S. Supreme Court and 5th U.S. Circuit Court of Appeals.
But Judge Amos Mazzant refused to enjoin NLRB from prosecuting Aimbridge Employee Service Corp., a hospitality employment management firm, for alleged labor law violations because the board’s unconstitutional protections are severable from its broader structure.
Mazzant’s decision followed the 5th Circuit’s 2025 ruling in SpaceX v. NLRB. The 5th Circuit held that the removal protections for ALJs, who could only be removed for good cause as determined by the Merit Systems Protection Board after an opportunity for hearing before that agency, were likely unconstitutional.
The 5th Circuit decision upheld a lower court’s injunction of NLRB’s administrative processing of unfair labor practice complaints against SpaceX and other employers; NLRB ultimately abandoned its litigation against SpaceX. Mazzant said his determination followed from the 5th Circuit’s earlier conclusion.
“This Court takes but a mere step beyond the Fifth Circuit’s ruling in SpaceX to hold that Plaintiff is not only likely to succeed on the merits of its constitutional challenge against the removal protections enjoyed by ALJs and Board Members, but that Plaintiff does succeed on the merits of the same altogether,” Mazzant wrote.
Aimbridge’s position is also bolstered by the U.S. Supreme Court’s recent decision in Slaughter v. Trump, Mazzant said. There, the high court struck down its precedent, dating back to 1935, which largely insulated the leaders of certain federal agencies from at-will removal by the president. Slaughter, taken together with prior Supreme Court jurisprudence, made clear that both NLRB’s board and its ALJs are not exempt from the president’s removal power, Mazzant added.
Still, Mazzant noted that several other courts had been asked to weigh in on whether NLRB’s unconstitutional removal protections were severable from its broader statute. Those courts reached varying conclusions on the issue, but Mazzant cited two prior Supreme Court decisions — Seila Law LLC v. CFPB and Free Enterprise Fund v. PCAOB — to determine that protections were not only severable, but also that severability would be an appropriate remedy to the harms alleged by Aimbridge.
Mazzant held that NLRB’s board members may be removed by the president. He noted, however, that a more complicated question existed as to the agency’s ALJs, given the role of the MSPB in evaluating the judges’ removal.
Following a 2024 opinion of the U.S. District for the District of Columbia, Mazzant wrote that NLRB’s ALJs must be removable at-will by the board’s members without involvement by MSPB. Mazzant said this remedy “appears most appropriate under the circumstances” and “ensures that the NLRB will be fully responsible” for its ALJs.
But Mazzant also wrote that the court “has not foreclosed the opportunity for future congressional legislation” to address the constitutional issues at play.
The decision represents an opposite conclusion on the issue of severability compared to that of a May opinion issued by a separate Texas federal judge. Judge Mark Pittman held in Aunt Bertha v. NLRB that NLRB’s unconstitutional removal protections could not be severed from the agency’s statute and permanently enjoined its administrative proceedings against a social services platform.
Aunt Bertha represented a win for employers, Mark Eskenazi, counsel at Fox Rothschild, wrote in a May article for the firm, particularly those facing NLRB proceedings in the 5th Circuit. Eskenazi also noted Pittman’s secondary holding that NLRB’s pursuit of damages in an administrative forum violated the plaintiff’s Seventh Amendment right to a jury trial.
