Ninth Circuit Weighs in on Constitutionality of NLRB, Teeing Up Likely SCOTUS Review

By Jennifer Dunn, Michael Warner, K. Hope Harriman, and Shoshanah Weinreich - Franczek P.C.

November 12, 2025

The constitutionality of the National Labor Relations Board (NLRB) has taken center stage at the federal appellate courts for the second time this year. On October 28, 2025, the Ninth Circuit issued a ruling on three major challenges to  the constitutionality of the NLRB in National Labor Relations Board v. North Mountain Foothills Apartments, including : (1) whether the removal protections afforded to the NLRB’s administrative law judges (ALJs) are constitutional under Article II; (2) whether the lack of right to a jury trial at the NLRB violates the Seventh Amendment; and (3) whether the combined investigatory and adjudicatory power of the NLRB violates the separation of powers doctrine. With respect to the first issue, the Ninth Circuit did not rule on the merits, but rather stated that, even assuming the removal protections for ALJs were unconstitutional, the employer had failed to show that the structure caused it any harm. The Ninth Circuit found in favor of the NLRB on the remaining two issues.

The Ninth Circuit decision creates a potential circuit split regarding the impact the potentially unconstitutional removal protections for ALJs may have on employers who are subject to NLRB proceedings. As previously reported, in Space X v. NLRB, the Fifth Circuit held that the removal protections for the NLRB’s ALJs are likelyunconstitutional under Article II and upheld a preliminary injunction enjoining any further NLRB proceedings, finding that forcing an employer to participate in a proceeding before an agency that was unconstitutionally structured caused irreparable harm.  This split is likely to be resolved by the Supreme Court.

The Decision

In the Ninth Circuit case, the employer, North Mountain Foothills Apartments (“NMFA”), raised multiple constitutional challenges to the structure of the NLRB in its appeal of an adverse decision. First, it argued the fact the NLRB’s ALJs can only be removed “for cause” violates Article II by curtailing the president’s removal power. The arguments were similar to those raised by SpaceX before the Fifth Circuit.

Initially, in briefs submitted by then-NLRB General Counsel Jennifer Abruzzo, who was appointed by President Biden, the NLRB opposed all of NMFA’s constitutional challenges, arguing that they failed on the merits and were procedurally defective because they were not raised before the NLRB. However, within weeks after Abruzzo was removed by President Trump and replaced by William B. Cowen, the NLRB notified the court that it would no longer defend the constitutionality of the ALJ’s for-cause removal protections. In a February 2025 28(j) letter to the Court, the NLRB’s Deputy Associate General Counsel stated that “it no longer presses the argument in its brief regarding the constitutionality of the removal protections for NLRB Board members and administrative law judges” but that, regardless, NMFA has not showed that this structure caused it any harm. See Letter from Ruth E. Burdick, Deputy Assoc. Gen. Couns., NLRB to Molly C. Dwyer, Clerk of the Ct. for the U. S. Ct. of Appeals for the Ninth Cir. 1 (Feb. 21, 2025).

In its ruling, the Ninth Circuit did not specifically rule on the constitutionality of for-cause removal because it agreed with the NLRB that, even assuming arguendo that the structure was unconstitutional, NMFA never demonstrated it suffered any harm as a result. In so holding, the Ninth Circuit reached a vastly different conclusion than the Fifth Circuit as to the appropriate remedy for employers if the ALJs’ for-cause removal restrictions are ultimately deemed unconstitutional. According to the Fifth Circuit in SpaceX, “forcing the Employers to appear before an unconstitutionally structured agency inflicts irreparable harm.” However, according to the Ninth Circuit, regardless of the constitutionality of the ALJs’ for-cause removal protections, NMFA was unable to demonstrate that the structure caused it any harm, provided that the ALJ who ruled on the case was validly appointed in the first instance.

Possible Impact

There is now an opinion from the Fifth Circuit – bolstered by lack of resistance from the NLRB – finding that removal protections of the NLRB’s ALJs may be deemed unconstitutional. However, the Fifth and Ninth Circuits disagree on the remedy in the event of a constitutional defect: the Fifth Circuit believes that this unconstitutionality causes irreparable harm as a general rule, while the Ninth Circuit held – at least in the case of NMFA – that the employer suffered no harm as a result of the structure.

The Supreme Court is increasingly likely to review the constitutionality of the NLRB’s ALJs. But even if it ultimately rules that the for-cause removal protections of the ALJs is unconstitutional, the Court’s opinion on the remedy for employers will have a massive impact. If the Court follows the Fifth Circuit, employers might obtain sweeping relief for opinions rendered by the Board. But if it follows the Ninth Circuit, employers will not enjoy a per se presumption that any adverse ruling from a “constitutionally defective” NLRB actually entitles them to any relief.

Our team will be keeping a close eye on further developments.

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