A Texas federal judge last week delivered a significant blow to the National Labor Relations Board (NLRB), ruling that the agency’s structure is unconstitutional due to the removal protections afforded to its administrative law judges (ALJs) and its five-member board. U.S. District Judge Amos Mazzant, sitting in the Eastern District of Texas, determined that these protections cut against recent landmark decisions from the U.S. Supreme Court and the 5th U.S. Circuit Court of Appeals, particularly concerning the executive branch’s power to remove agency officials. Despite this sweeping constitutional declaration, Judge Mazzant notably declined to issue an injunction preventing the NLRB from prosecuting Aimbridge Employee Service Corp., a prominent hospitality employment management firm, for alleged labor law violations. His reasoning centered on the finding that the unconstitutional removal protections are "severable" from the NLRB’s broader statutory framework, allowing the agency to continue its functions while addressing the constitutional infirmities. This decision introduces further complexity and potential fragmentation into the enforcement of federal labor law, particularly within the jurisdiction of the Fifth Circuit.
The Unfolding Legal Challenge: Background and Precedents
The National Labor Relations Board, established in 1935 by the National Labor Relations Act (NLRA), serves as the primary federal agency responsible for enforcing U.S. labor law in relation to collective bargaining and unfair labor practices. Its structure includes a five-member board, appointed by the President and confirmed by the Senate, and a corps of ALJs who preside over initial hearings on unfair labor practice complaints. For decades, both the board members and ALJs have enjoyed a degree of independence through "for-cause" removal protections, meaning they could not be summarily dismissed by the President or other superior officials without a specific, legally justifiable reason, often determined after a hearing by the Merit Systems Protection Board (MSPB) for ALJs. This independence was traditionally viewed as crucial to shielding the agency from political influence, ensuring objective application of labor law, and protecting workers’ rights.
However, this traditional understanding of agency independence has come under increasing scrutiny in recent years, driven by a judicial trend favoring the "unitary executive theory." This theory posits that the President must have full control over the executive branch to fulfill their constitutional duties, implying that agency heads and their subordinates should generally be removable at will by the President. The legal landscape surrounding this issue has been significantly reshaped by several pivotal Supreme Court decisions, which Judge Mazzant directly referenced in his ruling.
Key Supreme Court Rulings Paving the Way
Judge Mazzant’s decision draws heavily on a series of Supreme Court cases that have systematically chipped away at the removal protections of various agency officials:
- Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) (2010): In this case, the Supreme Court struck down a statutory scheme that provided "two layers" of for-cause removal protection. Members of the PCAOB could only be removed for cause by the Securities and Exchange Commission (SEC), whose own members, in turn, could only be removed for cause by the President. The Court held that this double layer of protection unconstitutionally insulated PCAOB members from presidential control, violating the separation of powers. This established a precedent against multiple layers of removal protection.
- Seila Law LLC v. Consumer Financial Protection Bureau (CFPB) (2020): This ruling addressed the constitutionality of a single-director independent agency (the CFPB) whose director could only be removed by the President for "inefficiency, neglect of duty, or malfeasance in office." The Supreme Court found this single-director structure with for-cause removal unconstitutional, concluding that it vested too much power in a single individual unaccountable to the President. The Court severed the unconstitutional removal provision, making the CFPB director removable at will by the President. This case reinforced the principle that even a single layer of for-cause protection for a high-level executive branch official can be problematic if it unduly limits presidential authority.
- Slaughter v. Trump (recent decision): This recent and highly impactful Supreme Court decision, specifically referenced by Mazzant, directly challenged long-standing precedent, including Humphrey’s Executor (1935), which had largely insulated the leaders of certain federal agencies from at-will removal by the President. While the exact scope and implications of Slaughter v. Trump are still being debated, Mazzant interpreted it as making clear that both the NLRB’s board members and its ALJs are not exempt from the President’s removal power. This decision represents a significant affirmation of the unitary executive theory and has broad implications for the independence of federal agencies across the administrative state.
The Fifth Circuit’s Influence: SpaceX v. NLRB
Further strengthening the legal foundation for Mazzant’s ruling was the 5th Circuit’s own 2025 decision in SpaceX v. NLRB. In that case, the appellate court held that the removal protections for NLRB ALJs—who could only be removed for good cause as determined by the Merit Systems Protection Board (MSPB) after an opportunity for a hearing—were likely unconstitutional. The 5th Circuit decision upheld a lower court’s injunction against the NLRB’s administrative processing of unfair labor practice complaints against SpaceX and other employers. Following this appellate ruling, the NLRB ultimately abandoned its litigation against SpaceX in February 2026.
Judge Mazzant explicitly stated that his determination in the Aimbridge case was a direct logical extension of the 5th Circuit’s conclusion in SpaceX. He wrote, "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." This indicates a strong alignment with the appellate court’s reasoning and a commitment to pushing the boundaries of the unitary executive theory within the circuit.
The Crucial Question of Severability: A Divided Judiciary
While Judge Mazzant found the NLRB’s removal protections unconstitutional, his decision to allow the agency to continue prosecuting Aimbridge hinged on the concept of "severability." Severability refers to a legal principle where, if a part of a statute is found unconstitutional, the court determines whether the offending provision can be struck down while leaving the rest of the statute intact, or if the unconstitutional part is so integral that the entire statute must fall.
Mazzant, drawing on the Supreme Court’s approaches in Seila Law and Free Enterprise Fund, concluded that the unconstitutional removal protections for NLRB board members and ALJs are severable from the broader National Labor Relations Act. He determined that severing these protections and modifying the removal process would be an "appropriate remedy" for the harms alleged by Aimbridge. Specifically, Mazzant held that NLRB board members must be removable at-will by the President. For the agency’s ALJs, a more complex issue due to the MSPB’s historical involvement in evaluating their removal, Mazzant ruled that they must be removable at-will by the board members themselves, without any involvement from the MSPB. He stated this remedy "appears most appropriate under the circumstances" and "ensures that the NLRB will be fully responsible" for its ALJs. This approach effectively eliminates the layers of protection that the judiciary has found constitutionally problematic.
This conclusion on severability, however, places Judge Mazzant’s ruling in direct opposition to another recent decision by a separate Texas federal judge. In May, Judge Mark Pittman, also in a Texas federal court, held in Aunt Bertha v. NLRB that the NLRB’s unconstitutional removal protections could not be severed from the agency’s statute. Consequently, Judge Pittman issued a permanent injunction against the NLRB’s administrative proceedings against Aunt Bertha, a social services platform. This stark contrast highlights a burgeoning circuit split within Texas federal courts, foreshadowing potential appellate challenges and a likely eventual review by the 5th Circuit or even the Supreme Court to resolve the disagreement.
The Aunt Bertha decision was hailed as a significant victory for employers, particularly those facing NLRB proceedings in the 5th Circuit. As Mark Eskenazi, counsel at Fox Rothschild, noted in a May article for his firm, Judge Pittman’s ruling also included a secondary, equally impactful holding: that the NLRB’s pursuit of damages in an administrative forum violated the plaintiff’s Seventh Amendment right to a jury trial. While Judge Mazzant did not explicitly address the Seventh Amendment issue in his Aimbridge ruling, the Aunt Bertha precedent adds another layer of constitutional challenge to the NLRB’s enforcement mechanisms.
Implications and Future Outlook
Judge Mazzant’s decision, while declining to issue an immediate injunction against Aimbridge, carries profound implications for the National Labor Relations Board, employers, and the broader landscape of U.S. labor law.
- For the NLRB: The ruling, if it stands, would fundamentally alter the agency’s operational independence. The ability of the President to remove board members at will, and the board’s ability to remove ALJs at will, would significantly increase political influence over the agency’s enforcement priorities and adjudicative functions. This could lead to a more politically responsive NLRB, which could be seen as either a positive (greater accountability to the executive) or a negative (loss of non-partisanship and expertise) depending on one’s perspective. It could also create a chilling effect on ALJs, potentially impacting the impartiality of their decisions if they fear arbitrary removal.
- For Employers: The decision, particularly in conjunction with Aunt Bertha, provides a powerful tool for companies facing NLRB complaints within the 5th Circuit. The constitutional challenges to the NLRB’s structure could lead to more employers filing similar lawsuits in federal courts, seeking to halt administrative proceedings. While Aimbridge did not secure an injunction, the ruling confirms the constitutional defects employers have been alleging. The Aunt Bertha decision, with its non-severability and Seventh Amendment findings, offers an even stronger defense for employers in that specific district.
- For Labor Unions and Workers: Unions and worker advocates are likely to view these rulings with concern. A more politically pliable NLRB, or one whose enforcement actions are frequently challenged and enjoined, could weaken the agency’s ability to protect workers’ rights, enforce fair labor practices, and facilitate collective bargaining. This could potentially lead to a less effective deterrent against employer misconduct.
- For the Administrative State: These decisions further underscore the judiciary’s increasing scrutiny of independent agencies and the continued ascendancy of the unitary executive theory. It signals a trend where courts are more willing to dismantle or significantly alter agency structures deemed to excessively insulate officials from presidential control. Other agencies with similar removal protections could face analogous constitutional challenges.
- Congressional Action: Judge Mazzant explicitly noted that the court "has not foreclosed the opportunity for future congressional legislation" to address the constitutional issues at play. Congress could, in theory, amend the National Labor Relations Act to restructure the NLRB in a manner that complies with the Supreme Court’s and appellate courts’ interpretations of presidential removal power. However, given the highly partisan nature of labor law, achieving consensus on such legislation would likely be an arduous and uncertain process.
- Appellate Review and Supreme Court: The divergent conclusions on severability between Judge Mazzant and Judge Pittman almost guarantee that these issues will be taken up by the 5th Circuit Court of Appeals. The ultimate resolution of this circuit split, especially if other circuits weigh in differently, could eventually necessitate Supreme Court intervention to provide a definitive ruling on the NLRB’s constitutional structure and the scope of presidential removal powers over agency officials.
In conclusion, Judge Mazzant’s ruling marks another critical juncture in the ongoing legal debate over the independence of federal agencies. While providing a clear constitutional condemnation of the NLRB’s long-standing structure, his decision to allow for severability offers a temporary operational reprieve for the agency in the Aimbridge case. However, the emerging judicial split and the broader implications for administrative law suggest that the battle over the NLRB’s future, and indeed the future of the administrative state, is far from over and will likely continue to unfold in courtrooms and potentially in Congress for years to come.
