Labor & Employment Law Daily Wrap Up, PROCEDURE—E.D. Tex.: NLRB removal protections for board members, ALJs unconstitutional but severable, court concludes, (Jul 29, 2026)

By Ronald Miller, J.D.

The employer’s request for a declaratory judgment holding that removal protections for NLRB members and ALJs are unconstitutional comported with the Fifth Circuit’s ruling in Space Exploration Technologies Corp. v. NLRB.

After finding that the removal protections for NLRB members and administrative law judges violate the U.S. Constitution, a federal district court in Texas ruled that the offending provisions of 5 U.S.C. § 7521(a) and 29 U.S.C. § 153(a) may be severed, such that the employer was not entitled to a permanent injunction. Because the court determined that the employer had succeeded on the merits of its Article II claims, it acted within the proper limits of inquiry in considering whether severance was an appropriate remedy under the circumstances. The court found that severance of the “for cause” restrictions remedied the employer’s injury of facing an unconstitutional Board (Aimbridge Employee Service Corp. v. NLRB, No. 4:25-cv-1014 (E.D. Tex. July 27, 2026)).

The NLRB administers and enforces the NLRA, which includes processing allegations that an employer or union has committed an unfair labor practice. The Board employs administrative law judges as initial adjudicators. These ALJs are responsible for issuing initial decisions, which are subject to review by the agency’s five-member Board—which sits atop the NLRB’s hierarchy. ALJs themselves are reviewed by the Merit Systems Protection Board (MSPB), “an independent, quasi-judicial agency that adjudicates federal employee appeals from agency personnel actions.”

Removal provisions. The President maintains direct yet statutorily limited influence over the tenure of officers of the five-member Board and members of the MSPB. An ALJ may be removed “only for good cause established and determined by the MSPB on the record after opportunity for hearing before the Board.” In other words, ALJs enjoy a two-step process that limits the removal power of the executive. The present litigation centers around the constitutionality “of these multi-layered removal provisions.”

This case arises from a series of unlawful labor practice charges filed by a union against an employer. An NLRB regional director issued a consolidated complaint alleging 18 violations of the NLRA by the employer. The alleged violations included the employer’s termination of three employees because of their support for the union, surveillance of employees engaged in union activities, and suggestion that the facility would close if employees selected the union as their bargaining representative. The employer filed this action to enjoin the NLRB from prosecuting it for alleged unfair labor practices “until Congress corrects the NLRB Defendants’ unconstitutional removal protections”. The parties filed cross-motions for summary judgment.

Severance. Rather than defend the disputed statutory provisions, the NLRB sought severance of any offending provision as an alternative to a permanent injunction. The court divided the question before it into three parts. First, the court explained, it must determine whether the contested statutory provisions are unconstitutional, as “[a] statute must be found to be inoperative or unconstitutional as it was written before the issue of severance can be reached.” Then, the court must determine whether the offending provisions present an appropriate opportunity for severance. Finally, if it finds the offending provisions are severable, it must address whether severance should take the place of a permanent injunction.

The employer asked the court to “hold that removal protections for NLRB members and ALJs are unconstitutional” As the terms of this request comport with the Fifth Circuit’s ruling in Space Expl. Techs. Corp. v. Nat’l Lab. Rels. Bd., 151 F.4th 761, 766 (5th Cir. 2025), the court granted the employer’s request for declaratory relief related to the constitutionality of removal protections for ALJs and Board Members.

In SpaceX, the Fifth Circuit determined that “ALJs are inferior officers insulated by two layers of for-cause removal protection—an arrangement the Supreme Court and [the Fifth] circuit have both held unconstitutional.” Thus, the employer was likely to succeed on the merits.

Executive power. Article II of the Constitution vests “[t]he executive Power” in “a President,” who must “take Care that the Laws be faithfully executed.” In fulfilling their role as executive, “the Framers expected that the President would rely on subordinate officers for assistance.” These officers are subject to the President’s removal power, as “[s]ince 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary.” Importantly, Congress generally may not “interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”

Without an appropriate or applicable exception to the President’s removal power, Board Members and ALJs alike are left to bear the full force of the simple constitutional truth that “[t]he President’s power to remove is essential to the performance of his Article II responsibilities and control over the Executive Branch.” “The removal power helps the President maintain a degree of control over the subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.”

Neither Board Members nor ALJs are exempt from the President’s removal power, and the removal protections currently shielding both classes of officer violate this general constitutional principle. Accordingly, the court found the removal protections contained in 5 U.S.C. § 7521(a) and 29 U.S.C. § 153(a) unconstitutional under Article II of the United States Constitution.

Severance of offending provisions. When it confronts a constitutional flaw in a statute a court tries to limit the solution to the problem, severing any problematic portions while leaving the remainder intact. “The standard for determining the severability of an unconstitutional provision is well established: ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” At bottom, “[t]he relevant inquiry is ‘whether the statute will function in a manner consistent with the intent of Congress.’”

Here, the court was tasked with analyzing the same statutes at issue in Aunt Bertha dba Findheld v. NLRB, to either (a) similarly hold that the statutes lie beyond the reach of severability and grant Plaintiff a permanent injunction; or (b) sever the unconstitutional provisions. The court primarily relied upon precedent offered by two Supreme Court cases in crafting an appropriate remedy: Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), and Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010).

Three immediate questions pertained to severability for the court’s determination: first, whether severance may suffice to cure the injury identified by the Fifth Circuit in SpaceX; second, whether 29 U.S.C. § 153(a) is severable; and third, whether 5 U.S.C. § 7521(a) is severable.

Aunt Bertha held in part that “severance would not remedy [the relevant constitutional] injury in any event.... [a]llowing the proceedings to go forward under a judicially altered framework would perpetuate [the plaintiff’s] harm.” However, the court found in this instance that “severance of the ‘for cause’ restriction[s] remedies the... injury as found by the majority of [the Fifth Circuit] of being overseen by an unconstitutionally structured agency.” In arriving at this conclusion, the court placed particular emphasis on the Fifth Circuit’s express recognition in SpaceX that severance has the potential to cure the harm caused by the challenged dual-layer removal protection scheme.

Section 153(a) is severable. The court found the relevant portion of 29 U.S.C. § 153(a) severable from the rest of the NLRA. This statutory provision protects “[a]ny member of the Board” from being removed by the President except for “neglect of duty or malfeasance in office.” 29 U.S.C. § 166 expresses a congressional preference for severance over a general permanent injunction against the NLRB at large.

Real-world developments support the severability of 29 U.S.C. § 153(a). On January 27, 2025, the President removed an NLRB Board Member from office without providing cause for the removal. On February 10, 2025, the President also removed an MSPB Member from office in the same manner. Both instances of removal occurred despite the existence of congressional statutes which, by their express terms, appeared to protect the members from presidential removal except for good cause.

Upon review, the Supreme Court determined that “the Government is likely to show that both the NLRB and MSPB exercise considerable executive power,” and subsequently granted a stay, which prevented either officer from being reinstated while the propriety of the removals was litigated, Trump v. Wilcox, 145 S. Ct. 1415 (2025). The practical implications of the Supreme Court’s decision to stay enforcement of 29 U.S.C. § 153(a) suggest that the statute is severable, as the NLRA continued to be observed despite non-enforcement of the removal protection afforded NLRB Board Members. The resolution of Wilcox thus supports the proposition that 29 U.S.C. § 153(a) may be declared unconstitutional and severed without jeopardizing the whole of the NLRA.

Section 5 U.S.C. § 7521(a) severable. The court found that the unconstitutional portion of 5 U.S.C. § 7521(a) may also be cured by severance. This statute protects the tenure of ALJs such that they may be removed “only for good cause established and determined by the [MSPB] on the record after opportunity for hearing before the Board.” According to the “strong presumption of severability,” federal courts typically “presume[] that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Severance is appropriate where the surviving provisions of a given statute are capable of functioning independently and “nothing in the statute’s text or historical context makes it ‘evident’ that Congress... would have preferred no Board at all to a Board whose members are removable at will.”

Because there is no indication that the APA provisions separate and apart from 5 U.S.C. § 7521(a) are incapable of functioning independently from that statute as applied to ALJs, and because “nothing in the statutory scheme suggests that Congress would prefer a complete unwind of actions taken by the [NLRB] to [NLRB ALJs] removable at will,” the court found severance to be appropriate in this instance. Further, the court did not find that the severance of 5 U.S.C. § 7521(a) would place the operation of either the NLRA or the APA beyond the manner intended by Congress, as individual ALJs are already considered “agent[s] of the Board.”

Appropriate severance. The court identified two possible acts of severance: (a) sever the bottom-layer of protection and remove the ALJ’s good cause protection, which would effectively take the MSPB out “of the mix,” and leave ALJs removable by Board Members at will; or (b) sever the top-layer safeguards afforded MSPB members. Here, the court opted to follow the district court in VHS Acquisition Subsidiary No. 7 v. National Labor Relations Board, 759 F. Supp. 3d 88, 100 (D.D.C. 2024), by adopting the first option.

The case is No. 4:25-cv-1014.

Judge: Mazzant, A.

Attorneys: Jonathan R. Childers (Lynn Pinker Hurst & Schwegmann) for Aimbridge Employee Service Corp. Grace L. Pezzella for the NLRB, David M. Prouty, James R. Murphy and Scott A. Mayer.

Companies: Aimbridge Employee Service Corp.

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