Today, in Space Exploration Technologies Corp. v. NLRB, the U.S. Court of Appeals for the Fifth Circuit concluded that the structure of the National Labor Relations Board (NLRB) is unconstitutional in (at least) two ways. First, the NLRB's administrative law judges are insulated by a double-for-cause removal protection of the sort invalidated in Free Enterprise Fund v. PCAOB (and which the Fifth Circuit had previously declared unconstitutional in Jarkesy). Second, the court concluded that for-cause removal protection for NLRB Board members is also unconstitutional because the NLRB exercises significant executive power and is not sufficiently like the Federal Trade Commission to be protected by Humphrey's Executor.
Judge Willett wrote for the court, joined by Judge Duncan. Judge Wiener concurred in part and dissented in part. Judge Wiener agreed with the majority on the merits, but disagreed on whether the companies challenging the NLRB were entitled to a preliminary injunction against being subject to Board proceedings. In Judge Wiener's view, the companies did not demonstrate that they would suffer irreparable harm.
Judge Willet summarized his opinion this way:
