As far as federal agencies go, the National Labor Relations Board (“NLRB”), established in 1935, is of relatively ancient vintage, and its constitutionality was affirmed long ago in NLRB v. Jones & Laughlin Steel Corp. Even so, with the administrative state under assault and stare decisis in retreat, renewed challenges to the NLRA’s constitutionality are increasingly in vogue. As John has detailed for OnLabor, a swarm of powerful corporations have responded to NLRB proceedings by filing lawsuits directly in federal court challenging the Board on constitutional grounds. Even several supposedly progressive nonprofit organizations, such as the ACLU, have gotten in on the action. These suits make three primary claims: (1) that the NLRB adjudicates private rights without a jury in violation of the Seventh Amendment; (2) that the NLRB’s Administrative Law Judges (“ALJs”) are unconstitutionally insulated from presidential removal in violation of Article II; and (3) that Board members themselves are likewise impermissibly protected from removal. (In addition, one company has brought a far-fetched nondelegation challenge. If successful, this claim could pose a more serious threat to the statute. No court has yet addressed it, however, and it is not addressed here.) Federal courts have responded to these suits with varying levels of enthusiasm; though no Court of Appeals has weighed in to date, several district courts in Texas have at least partially endorsed the claims, while those outside the Fifth Circuit have unvaryingly rejected them. Ultimately, however, these challenges are intended more to delay than destroy the NLRB, and even if they were to succeed, their practical consequences may be relatively minimal.

The Seventh Amendment claim rests largely on the Supreme Court’s 2024 decision in SEC v. Jarkesy, which held that defendants are entitled to a jury trial when the SEC seeks civil penalties for securities fraud. The Court found that the SEC’s antifraud proceedings are “legal” rather than equitable in nature, since they seek monetary relief (and are analogous to common law fraud), and therefore trigger the Seventh Amendment’s jury guarantee. Yet Jarkesy’s application to the NLRA is limited, for the Court long ago made clear that the Board’s remedial authority is solely compensatory, and the NLRB, unlike the SEC, is unable to assess civil penalties. Most traditional Board remedies, such as orders to cease-and-desist, bargain in good faith, or even reinstate workers with backpay, are clearly equitable, making the Seventh Amendment’s jury guarantee inapplicable—as the Court squarely held in Jones & Laughlin nearly nine decades ago.

To be sure, in Thryv, Inc. in 2022, the Board expanded its compensatory arsenal to include any “direct and foreseeable pecuniary harms,” such as medical expenses, credit card debt, or other costs, incurred as a consequence of an unfair labor practice. Since these remedies seek monetary relief, they are arguably “legal” under Jarkesy and thus would implicate the Seventh Amendment. Even if so, the consequences may be less dramatic than appears at first blush. First, the Board could merely decline to seek these “legal” remedies, in which case no jury trial would be necessary. Alternatively, the Board, invoking its existing statutory authority to delegate its fact-finding powers to “agents,” could simply opt to empanel juries. That is, in any case seeking “legal” remedies, the Board could delegate fact-finding duties to a jury of its choosing, presided over by an ALJ, and otherwise proceed as usual. What’s more, since the overwhelming majority of ULP proceedings settle prior to a hearing, this would only be necessary in a small fraction of cases. Indeed, in part for this reason, juries are rare in bankruptcy courts, and the Court’s 1989 ruling in Granfinanciera, S.A. v. Nordberg, requiring juries in bankruptcy proceedings, proved far less disruptive than initially anticipated.

Challenges to ALJs’ and Board members’ insulation from presidential control are also unlikely to be dramatically disruptive. These challenges are rooted in the Court’s decisions in Free Enterprise Fund v. PCAOB and Seila Law LLC v. CFPB, respectively. In the former, the Court held that “dual layers” of for-cause protection from presidential removal—such as that given to NLRB ALJs—violates Article II; in the latter, that the President’s inability to remove the Director of the Consumer Financial Protection Bureau—an independent regulatory agency like the NLRB—without cause was likewise invalid. In both cases, however, the Court’s remedy, predicated on the statutes’ severability clauses, was to simply excise the unconstitutional removal provisions, thereby enabling the officials at issue to be removed at will by higher officers while preserving the remainder of the statutory schemes. In the event the Court finds these decisions applicable to the NLRB, it will likely traverse the same remedial course, given that the NLRA also contains a severability clause, and hold that ALJs are removable by Board members at will, who are in turn removable by the President at will.

The President already appoints NLRB members upon the expiration of their predecessors’ terms, however, and, though it may take several years, an incoming President’s appointees eventually gain control of the Board. Authorizing the President to remove and replace members at will would merely expedite this process; it would not drastically alter the Board’s operations or long-term policy outcomes. Nor would empowering Board members to remove ALJs at will. First, setting aside the practical difficulties of such an undertaking, it is unlikely this would result in the widespread replacement of ALJs, since Board members already review all ALJ decisions and may reverse those they dislike. Even if such en masse removal were to occur, it would not change the Board’s existing legal standards or procedures given that ALJs merely apply Board doctrine in the first place. Put differently, Board members already freely convert their policy preferences into law, which ALJs are obligated to follow, so they have little institutional incentive to remove most ALJs, and enabling them to do so at will would not dramatically impact Board process or policy. Moreover, as discussed above, the vast majority of NLRB cases settle prior to ever reaching an ALJ’s desk. Thus, while eroding their job security may increase the difficulty of attracting and retaining high-quality ALJs, it is unlikely to seriously alter the NLRB’s functions or case outcomes.

Of course, in assessing any of these claims, the Court could simply declare the constitutional infirmity irremediable and strike down the NLRA wholesale. This outcome, however, is likely precluded by the NLRA’s severability clause, which evinces a congressional preference for preserving rather than invalidating the statute amid any constitutional defects. Rather than disembowel the NLRA or neuter the NLRB, then, the Court should, in accordance with the longstanding severability doctrine, simply sever the offensive provisions of the statute and enforce the remainder. Moreover, consistent with the constitutional avoidance doctrine, the Court should construe the NLRA so as to avoid constitutional deficiencies in the first place—such as to empower the Board to impanel juries, for instance (or to disable the Board from issuing “legal” remedies under Thryv). Still, it is difficult to forecast the proclivities of today’s increasingly unrestrained Court, which is no friend of labor, with any certainty. Even if the Court elects to return the labor movement to the “law of the jungle,” however, it may well present as many opportunities as pitfalls.