Employment Law Report
9th Circuit Rejects Challenges to the Constitutionality of the NLRB and Creates a Circuit Split
On October 28, 2025, the 9th Circuit Court of Appeals rejected challenges to the constitutionality of the National Labor Relations Board (“NLRB”). This ruling stands contrary to the 5th Circuit Court of Appeals’ ruling from August 19, 2025, which upheld similar challenges to the constitutionality of the NLRB.
In NLRB v. N. Mountain Foothills Apartments, (9th Cir. 2025), the 9th Circuit was faced with three challenges to the constitutionality of the NLRB: (1) whether the removal protections of the NLRB’s Board Members and Administrative Law Judges (“ALJs”) violated Article II of the Constitution by unduly burdening the President’s removal power; (2) whether the NLRB’s administrative adjudication process unduly deprived employers of the right to a jury trial under the 7th Amendment; and (3) whether the structure of the NLRB violated the Due Process Clause by serving both investigative and adjudicatory roles.
The 9th Circuit struck down all three challenges to the constitutionality of the NLRB:
1. The 9th Circuit, relying on Humphrey’s Executor v. United States, 295 U.S. 602 (1935), held that Article II did not require “at-will” removal of ALJs because they were “principal officers” performing a quasi-judicial function. Further, the 9th Circuit reasoned that since the President had not attempted to remove the ALJ who rendered the underlying decision, there was no harm.
2. The 9th Circuit held that the 7th Amendment challenge failed because the NLRB’s proceedings were “unknown to common law” and were equitable in nature because the relief granted by the proceedings was restorative rather than punitive, thus escaping the purview of the 7th Amendment.
3. The 9th Circuit held that administrative bodies who perform both investigative and adjudicatory functions did not violate the Due Process Clause because the Board adjudicated while the NLRB’s General Counsel investigated, thus sufficiently bifurcating the structure to comply with the demands of the Constitution.
The 9th Circuit’s holding as to the first issue is the most compelling. The 5th Circuit, in SpaceX v. NLRB, 151 F.4th 761 (5th Cir. 2025), was presented with an identical challenge to the removal protections of NLRB Board Members and ALJs but came to a different conclusion. The 5th Circuit held that removal protections for NLRB ALJs and Board Members were unconstitutional violations of Article II because ALJ’s were protected by dual layers of “for cause” removal while Board Members were only removable “for cause.” The 5th Circuit reasoned that Humphrey’s Executor did not apply because ALJ’s were “inferior officers” and that the NLRB’s Board wielded “substantial executive power.”
This split between the 5th and 9th Circuits on this issue will almost certainly come before the United States Supreme Court soon. For now, employers need to be on the
lookout for future decisions impacting the validity of the NLRB. If the NLRB is dissolved or substantively reworked because of these challenges, employers are urged to contact experienced labor and employment counsel to discuss the implications.
