Key Points

• A federal court in Texas declared National Labor Relations Board (NLRB) removal protections unconstitutional but, unlike a prior ruling, severed the offending provisions rather than shutting down the agency's proceedings.
• The decision creates a split with another Texas District Court on whether severance is a viable remedy — a question with major consequences for every pending NLRB case.

At the heart of a pair of recent cases in Texas federal court are statutory provisions that the challengers argued restrict the president’s constitutional authority to remove NLRB members and administrative law judges (ALJs). More specifically, employers facing unfair labor practice proceedings before the NLRB have argued that for-cause removal protections for these officials deprive the Board the authority to act.

In Aimbridge Employee Service Corp. v. NLRB, issued on July 27, 2026, the U.S. District Court for the Eastern District of Texas held that the removal protections for both NLRB members and ALJs are unconstitutional — the same conclusion reached by the U.S. District Court for the Northern District of Texas in the Aunt Bertha decision on May 15. We covered the Aunt Bertha decision in a prior alert. Importantly, however, where Aunt Bertha treated the constitutional defect as fatal to the agency's proceedings, Aimbridge severed the unconstitutional provisions, allowed the NLRB's statutory framework to continue operating, and denied the employer's request for a permanent injunction.

The Aimbridge Holdings

This case arose from unfair labor practice charges filed by a union against Aimbridge, a company that provides management services to hotels, alleging employee terminations for union support, surveillance of employees’ union activities and threats of facility closure. Aimbridge sued to enjoin the NLRB from prosecuting those charges on the basis that removal protections for Board members and ALJs are unconstitutional. The court resolved three key issues:

• Consistent with recent Supreme Court and U.S. Court of Appeals for the 5th Circuit decisions, the court declared that the for-cause removal protections for Board members and ALJs impermissibly restrained the president’s powers under Article II of the Constitution.
• Importantly, the court held that the unconstitutional removal provisions are severable from the broader statutory scheme. For Board members, the court struck the for-cause limitation so that the statute now reads, in effect: "Any member of the Board may be removed by the President." For ALJs, the court severed similar statutory protections, leaving ALJs removable at will by the NLRB itself.
• The court denied the employer's request for a permanent injunction, finding that severance itself cured the constitutional injury and rendered injunctive relief moot.

The District Court Severability Split

The divergence between Aimbridge and Aunt Bertha turns on how each court understood its role in remedying a constitutional defect spread across multiple statutes and institutions.

Aunt Bertha held that because the constitutional problem arises from "stacked" or "layered" protections spanning multiple statutes, there is no single provision a court can erase to cure the defect — and any attempt to choose among competing institutional designs would amount to judicial legislation. That court also held that severance could not undo the harm of an unconstitutional proceeding that had already occurred.

Aimbridge disagreed. The court stated, "[t]he mere existence of multiple avenues of severance, by itself, is not enough to remove entire statutory provisions from the Court's purview." The court also found that severance does remedy the constitutional injury — an employer's complaint about being subject to proceedings overseen by unconstitutionally insulated officials is cured once the insulation is removed.

Implications for NLRB Stakeholders

This intra-circuit split has practical consequences. Under Aunt Bertha, an employer that successfully challenges the Board’s structure obtains a permanent injunction halting the agency's case entirely. Under Aimbridge, a successful challenge results in severance and the proceedings continue. Implications for various parties include:

• For employers facing or anticipating NLRB proceedings, the landscape is now more uncertain. The Aimbridge approach means a constitutional challenge may no longer halt enforcement — the NLRB could survive the challenge with its administrative prosecution intact.
• For unions and workers who rely on NLRB enforcement, Aimbridge is a more favorable outcome than Aunt Bertha — the agency lives to prosecute another day.
• For all NLRB stakeholders, the split means the question of severance is likely heading toward appellate review. How the 5th Circuit, and possibly the Supreme Court, resolves this question could determine whether the NLRB's enforcement machinery can survive the current wave of constitutional challenges, as in Aimbridge, or whether each successful challenge shuts down agency proceedings one case at a time, as in Aunt Bertha.

Employers and other parties navigating this landscape should consult experienced counsel to determine how these competing decisions affect pending or anticipated NLRB matters.

For more information, please contact Mark Eskenazi at 202.461.3109 or meskenazi@foxrothschild.com, or another member of Fox Rothschild's 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.