Two recent Texas district court decisions have intensified the debate over the constitutional structure of the National Labor Relations Board (NLRB). While both courts agreed that statutory protections limiting the President’s ability to remove NLRB Board members and administrative law judges (ALJs) are unconstitutional, they reached opposite conclusions on the critical question of remedy.
In Aunt Bertha d/b/a Findhelp v. NLRB (N.D. Tex.), the court held that the unconstitutional removal protections could not be severed from the broader statutory framework. The court reasoned that the constitutional defect arises from multiple interconnected provisions and that choosing which protections to eliminate would require judicial policymaking rather than straightforward severance.
As a result, the court permanently enjoined the NLRB from continuing the underlying unfair labor practice proceeding. The court also concluded that the Board’s pursuit of compensatory damages in administrative proceedings raises Seventh Amendment concerns.
Just two months later, in Aimbridge Employee Service Corp. v. NLRB (E.D. Tex.), the court reached the opposite conclusion. Although it agreed that the removal protections violate Article II based on the Fifth Circuit’s recent decision in SpaceX v. NLRB, it held that those provisions are severable.
Relying on the NLRA’s severability clause and Supreme Court precedent favoring severance where possible, the court concluded that the constitutional defect could be cured without disrupting the Board’s ability to adjudicate unfair labor practice cases. The court therefore denied injunctive relief and allowed the NLRB proceeding to move forward.
The practical consequences are significant. Under Aunt Bertha, a successful constitutional challenge could halt NLRB enforcement actions altogether. Under Aimbridge, employers may prevail on the constitutional merits yet still face continued NLRB proceedings because the court can sever the offending provisions and preserve the agency’s operations.
The split sets the stage for likely Fifth Circuit review. The appellate court previously questioned the constitutionality of the NLRB’s structure but did not definitively resolve severability. The emerging divide suggests that the next phase of litigation will focus less on whether the removal protections are constitutional and more on whether courts can excise them while leaving the NLRB intact. The answer may ultimately come from the Supreme Court.
About the author
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
