Fifth Circuit Holds That NLRB’s Administrative Law Judges Are Unconstitutional

“Today’s decision confirms that multiple levels of for-cause removal protection deprive the President of the ability to carry out federal law.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

WASHINGTON, DC—The U.S. Court of Appeals for the Fifth Circuit today preliminarily enjoined unconstitutional enforcement actions by the National Labor Relations Board (NLRB). The decision was a victory for Washington Legal Foundation, which filed an amicus brief supporting that result.

The case arose from a consolidated appeal of suits against the NLRB, alleging that the agency “violates bedrock constitutional principles of separation of powers” by serving as both prosecutor and judge. The Plaintiffs contended that NLRB’s Administrative Law Judges (ALJs) are unconstitutionally protected from being fired by the President. The Fifth Circuit stayed any further agency action pending the appeal.

In its amicus brief in supporting the challenge, WLF urged the court to hold that NLRB’s ALJs enjoy unconstitutional removal protection. As the brief explained, NLRB’s ALJs are inferior officers who enjoy multiple levels of for-cause removal protection. The Supreme Court’s decisions in Jarkesy and Free Enterprise Fund make clear that this violates Article II because the President lacks the ability to ensure that the ALJs are fulfilling their duties.

The Fifth Circuit’s opinion agreed that a preliminary injunction was required: “When an agency’s structure violates the separation of powers, the harm is immediate—and the remedy must be, too.”

The amicus brief WLF joined was prepared by Alex T. Macdonald at Littler Mendelson PC for a group of amici including Associated Builders and Contractors, Institute for the American Worker, Mackinac Center for Public Policy, and The Coalition for a Democratic Workplace.