Key Points

• Significant concession: The National Labor Relations Board (NLRB or Board) asked a federal court to declare that the statutory removal protections for both NLRB Board members and administrative law judges (ALJs) are unconstitutional — and to sever them from the National Labor Relations Act (NLRA).
• What could happen: If the court grants the relief the Board seeks, the president will have unfettered authority to fire NLRB Board members and ALJs at will — altering the balance of power over private-sector labor relations. The Board asked the court to strike down these job protections to avoid a permanent injunction that would halt trial proceedings in the underlying case — a remarkable strategy of trading structural autonomy for enforcement power.
• Open questions: It remains unclear whether the court could find the removal provisions inseverable from the rest of the NLRA — raising the specter of the entire law being struck down — and whether the Board would apply any ruling beyond this single case. Moreover, former Board Member Gwynne Wilcox's challenge to her termination is pending in the D.C. Circuit.

The National Labor Relations Board (NLRB or Board) filed a motion on March 23, 2026 asking a federal court to declare the statutory removal protections for its own Board members and administrative law judges (ALJs) unconstitutional and to sever them from the National Labor Relations Act (NLRA). The agency made this concession of its structural independence to salvage its ability to prosecute an unfair labor practice (ULP) case against a company, after a court found that the removal protections likely undermined the President’s constitutional powers.

Background

A Texas company challenged the constitutionality of the NLRB's structure after the agency brought a ULP case alleging retaliation against an employee who raised health and safety complaints. In August 2025, the U.S. Court of Appeals for the 5th Circuit granted a preliminary injunction halting the Board’s ULP proceedings, finding that the for-cause removal protection afforded to NLRB Board members and ALJs likely violated the Constitution.

On March 23, 2026, the NLRB filed a motion with the U.S. District Court for the Southern District of Texas arguing that the court should declare unconstitutional the removal protections for its Board members and ALJs and sever those protections from the NLRA. The agency had stopped defending the constitutionality of the job protections last year but took the argument a step further in its motion.

Specifically, the NLRB urged the court to issue a declaratory judgment severing the offending statutory provisions — the "for neglect of duty or malfeasance in office" limit on presidential removal of Board members under the NLRA, and the "good cause" standard for ALJ removal under the Civil Service Reform Act.

The Board argued that once these provisions are severed, the president would have at-will removal authority, the constitutional infirmity on the ULP proceedings would disappear, and the company's need for an injunction would disappear. In other words, the Board contended that severing the offending provisions, rather than permanently enjoining the proceedings, would ensure the case would no longer be presided over by officials unconstitutionally insulated from presidential supervision.

In effect, the NLRB conceded its independence to preserve its ability to prosecute the case — a remarkable strategy that prioritizes the agency's enforcement power over its structural autonomy.

Takeaways

The Board has effectively asked a federal court to dismantle the structural independence that has defined the agency for nearly a century. Without removal protections, Board members and ALJs would serve entirely at the pleasure of the president. Given recent Supreme Court rulings casting doubt on the constitutionality of such removal protections, it is conceivable — if not likely — that the Supreme Court will ultimately rule these job protections unconstitutional.

As a practical matter, this means that each new administration could clean house at the NLRB — replacing Board members and ALJs with political allies — causing even more dramatic and rapid swings in labor law enforcement and policy than usual.

Several issues bear watching:

• Scope of any ruling. If the district court agrees with the NLRB's position, it is possible the Board will apply the order only to this particular case. Under its “non-acquiescence” doctrine, the Board might decline to treat its members and ALJs as fireable at will in other cases.
• Severability risk. There is an open question whether the court could find that the NLRA's removal provisions are not severable from the remainder of the statute — which could raise the prospect of the entire NLRA being declared unconstitutional.
• Wilcox litigation. Even assuming the Board accepts that its members are fireable at will across cases, former Board Member Gwynne Wilcox's challenge to her termination is pending in the U.S. Court of Appeals for the D.C. Circuit, and the outcome there could be appealed to the Supreme Court.
• Impact on adjudication. The adjudicatory process — where ALJs find facts and assess witness credibility — is distinct from the NLRB General Counsel's prosecutorial function. A president's ability to terminate ALJs over policy disagreements could be considered inconsistent with the non-policy-based analysis that credibility determinations require.

Employers navigating this landscape should monitor this case and consult experienced counsel to build labor relations strategies that are resilient across shifting regulatory environments.

For more information on this topic, contact author Mark Eskenazi at meskenazi@foxrothschild.com or 202.461.3109, or any other member of our Labor & Employment Department. Listen to Mark’s podcast, “Labor Law Lineup”, on Spotify, Apple or wherever you get your podcasts.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author and not necessarily this law firm or its clients.