Challenges to the constitutionality of multimember agencies are no longer speculative. The Fifth Circuit’s recent decision in SpaceX v. NLRB (Aug. 19, 2025), finding the Board’s structure unconstitutional, heightens the urgency for those litigating like cases to reconsider their approach.
At this stage, it will not do to simply offer up novel originalist-sounding arguments that Humphrey’s Executor v. United States—the unanimous 1935 decision on which the constitutionality of multimember agencies like the National Labor Relations Board (NLRB or Board), the Federal Trade Commission (FTC), and Securities and Exchange Commission (SEC) rests—was rightly decided or that the Federal Reserve Board (FRB), another such agency but one wielding major influence over the national economy, cannot be soundly distinguished. Those approaches are dead on arrival.
The Wilcox Litigation
President Trump’s removal without cause earlier this year of NLRB Member Gwynne A. Wilcox led to lower court rulings holding the firing unlawful and requiring her reinstatement. In Trump v. Wilcox, a case on the emergency docket, a majority of the Supreme Court stayed the lower-court orders, indicating that only two “narrow exceptions” exist to plenary presidential removal of executive officers under Seila Law LLC v. Consumer Financial Protection Bureau. These exceptions are “for multimember expert agencies that do not wield substantial executive power, and one for inferior officers with limited duties and no policymaking or administrative authority,’” Quoting from a Kavanaugh dissent while on the D.C. Circuit, the majority noted these exceptions “‘represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President’s removal power.’” The Wilcox majority stated that the Government was likely to prevail on the merits because Board members exercise “considerable executive authority.” A petition for certiorari has not yet been filed, and nor has a case on the merits been scheduled for argument.
The majority’s language in Wilcox is critical because the Court has made clear in a number of decisions that, influenced by the so-called “unitary executive” theory underlying Article II of the Constitution, the President has inherent authority, not bound by statutory limits, to remove without cause “principal officers of the United States” – i.e., heads of all executive department and other executive officials.
Likely Overruling of Humphrey’s Executor but Possibly Leaving Room Open for a Purely Adjudicative Agency
It is time to embrace the purely adjudicatory administrative agency. The Court recognized in Freytag v. Commissioner—still good law—that because the Tax Court, an Article I tribunal, was performing an essentially judicial function, it was a “court[] of law” under the Constitution’s Appointment Clause. and hence the Chief Judge of the Tax Court could appoint non-principal officers, as special trial judges. In Weiner v. United States, admittedly under the sway of Humphrey’s, the Court unanimously ruled that the members of the War Claims Court, also an Article I court, were not removable by the President without cause (even though there were no express removal protections in the authorizing state). Justice Frankfurter wrote for the Court that it was inconceivable that even an Article I tribunal, as in that case, could have the necessary integrity if the adjudicators could be removed for political or no reason at all. The only alternative to administrative agency or other Article I adjudications is Article III adjudications which would require a swelling of the number of lifetime judges, perhaps akin to what some Latin American judiciaries look like.
One hopes that when the Court reaches the merits in Wilcox, a majority will be persuaded — and there is a need for members of the labor-management community and others to file amici briefs urging them to do so — that the NLRB performs a principally adjudicative function, sitting as an administrative tribunal hearing cases on a record compiled in a trial-type hearing before an ALJ, and that whatever executive functions the Board presently exercises can be severed from the National Labor Relations Act of 1935 (NLRA or Act), its authorizing law, leaving the rest of the Act intact.
Those executive functions are law enforcement functions, including the issuance of regulations, authorization of applications for preliminary injunctive relief under §10(j) of the Act, and supervision of the Regional Directors in representation cases. Since the Board’s involvement in these matters has, as a practical matter, been minimal, these functions would be exercised by the General Counsel, also a presidential appointee but who is no longer protected against at-will presidential removal. These functions could be severed from the Board without undermining its general mission as contemplated by Congress. In other cases, where the Court has found problems with removal protections, it has engaged in severability analysis, and hopefully will do so in this case.
Understandably, the President may still argue that the executive’s responsibility under Article II, § 3 to “take Care that the Laws be faithfully executed” entails the final say over policies of the United States having legal effect arrived at both in agency adjudications and rulemaking, unless they are rendered in decisions by Article III courts.
But in addition to concerns over the fate of the Federal Reserve System, the Supreme Court may have an added incentive to employ the suggested severability approach because allowing at-will presidential removal of members of adjudicatory bodies will likely undermine the actual and certainly perceived integrity of these tribunals. No one will regard a process as fair and having integrity if the adjudicator is influenced in rendering a decision by fear of possible removal by the President for any reason if the order is considered unfavorable to the interests of a business or trade or other interest group supporting the President’s party.
At-will removal of adjudicators would have enormous implications for adjudications in other multimember agencies like the Federal Trade Commission, the Securities and Exchange Commission, the Nuclear Regulatory Commission and many others but also for a wide range of Article I or Legislative Courts—tribunals like the U.S. Tax Court, the U.S. Court of Federal Claims, the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Armed Forces—whose members sit for relatively long terms protected against removal without cause before expiration of their terms. The Justices will have to consider whether a ruling in the case of the NLRB or other agencies that ends up requiring all adjudications to be held in tribunals whose members are removable at-will or in Article III courts (where judges must have life tenure) will be practicable and beneficial for our system.
The Case for a Labor Court
In the event the Supreme Court does leave room for a reconstituted NLRB, I and my coauthors, Roger King and Professor David Sherwyn, have previously proposed that Congress amend the NLRB to have the NLRB serve as a purely adjudicatory body, the change to take effect only after the next presidential election.
We envision a six-member adjudicatory agency—call it a Labor Court. The President would appoint the six members with the Senate’s consent for six-year terms on a staggered basis. The court would be comprised of two Democrats, two Republicans, and two Independents defined as individuals who have not represented labor or management interests for the previous six years and who otherwise exhibit a reputation for fair-minded, non-ideological professionalism. A new President might try to stack the deck with his supporters, but the hope is that the specification of criteria for appointment of the Independent members would empower the Senators to exercise a necessary check. The court would take appeals from unfair labor practice (ULP) decisions from the ALJs and Regional Director decisions in Representation cases. Any decision of the court overruling NLRB precedent would require four votes—to curb the constant policy oscillation with each new administration that bedevils the agency, impairs predictability for labor and management alike, and undermines the agency’s credibility with reviewing courts.
Under this structure, Regional Directors would be appointed by and supervised by the presidentially removable General Counsel. Only that officer could initiate proceedings before the Labor Court. Aggrieved parties could seek review in the courts of appeals, as present. Staggered terms of appointment could be set so that a new President from a different party would be able to appoint a majority of the bench soon after the mid-term elections.
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If SpaceX v. NLRB or Wilcox signals anything, it is that Congress cannot assume the existing Board structure will survive. A Labor Court offers a constitutionally viable alternative that preserves administrative adjudication, protects integrity, and provides stability for labor and management alike.
