The constitutional posture of the National Labor Relations Board (NLRB) has intensified following the Ninth Circuit’s recent unanimous, published decision in Nat’l Lab. Rels. Bd. v. N. Mountain Foothills Apartments, issued on October 28, 2025. This ruling directly rejected three fundamental constitutional challenges to the Board’s structure and remedial authority, deepening an existing circuit split that portends an inevitable resolution by the Supreme Court of the United States. Specifically, the Ninth Circuit upheld the Board against contentions that the for-cause removal protections for its members and Administrative Law Judges (ALJs) violate Article II, that its adjudicatory system and enhanced remedies infringe upon the Seventh Amendment right to a jury trial, and that its combined investigative and adjudicatory functions breach the separation of powers under the Fifth Amendment’s Due Process Clause. This stance markedly contrasts with the developing jurisprudence in other circuits, most notably the Fifth Circuit’s preliminary decision in SpaceX v. NLRB, which found the structural defect concerning presidential removal authority sufficient to constitute irreparable harm, thereby justifying an injunction against Board proceedings.
Regarding the challenge to the Board’s removal protections, the Ninth Circuit affirmed that the Supreme Court’s 1935 precedent in Humphrey’s Executor remains controlling law, which permits congressional limitation of the President’s removal power over officers of quasi-legislative or quasi-judicial agencies. Critically, the court required the employer to demonstrate specific harm resulting from the removal provision to obtain retrospective relief, a burden the employer failed to meet. This requirement directly diverges from the Fifth Circuit’s position, which holds that the unconstitutionality of the tribunal’s structure itself constitutes the harm. This structural split, concerning the extent of presidential removal power over executive officers, is already engaged in parallel litigation, as evidenced by the D.C. Circuit’s ongoing review in Trump v. Wilcox following the Supreme Court’s decision to stay a district court’s order reinstating a former NLRB member. The ultimate Supreme Court disposition on this core separation of powers issue is crucial for the operational independence of the NLRB and other similarly structured multi-member independent agencies.
The Ninth Circuit also upheld the Board’s remedial authority against a Seventh Amendment challenge, reasoning that the expanded make-whole remedies established in Thryv, Inc. are equitable in nature, designed to restore the status quo, and therefore do not constitute legal or punitive damages requiring a jury trial. This determination places the Ninth Circuit squarely at odds with the Third Circuit, which has rejected the availability of these enhanced remedies. Thus, the scope of pecuniary relief available to victims of unfair labor practices is currently dictated by geographic jurisdiction, with employers in the Ninth Circuit responsible for all “direct and foreseeable pecuniary harms,” including out-of-pocket medical expenses and credit card debt, until the Supreme Court resolves this remedial disparity. Furthermore, the court dismissed the Due Process challenge concerning the combination of investigative and adjudicatory functions, relying on established precedent that differentiates the authority of the NLRB General Counsel from the final adjudicatory power of the Board. This latest opinion reinforces a bifurcated administrative structure that federal appellate courts have consistently upheld, requiring the challenger to show actual bias, which was absent in this case. The confluence of these deep and developing circuit splits on both structural and remedial grounds signals that the constitutional viability of the NLRB is poised for a definitive ruling from the nation’s highest court.
