What Will the Constitutional Challenge to the NLRB Do?

Last week, a federal district court in Texas preliminarily enjoined the National Labor Relations Board (NLRB) from initiating an administrative proceeding against SpaceX on the grounds that removal protections for the agency’s administrative law judges (ALJs) and five board members are unconstitutional. Put simply, the agency’s current structure is unconstitutional because it contains rules that make it too difficult for the president to fire the ALJs and board members.

As with most constitutional law, the underlying legal question here turns upon impossibly vague text. Specifically, the question is whether the Article II requirement that the president “shall take Care that the Laws be faithfully executed” means that the president must retain the power to fire, at will, certain kinds of administrative agency officials. The idea that this bit of constitutional text provides a clear answer to a question as precise as the one being raised is obviously absurd, and so the resolution of the case will depend on the political views of the judges, including their opinions on the unitary executive theory, judicial restraint, and the utility of federal labor law.

There are basically three possible outcomes to the eventual Supreme Court decision in this case, each with different practical implications.

The first possible outcome is that the Supreme Court, citing Humphrey’s Executor v. United States, decides that the removal protections for NLRB ALJs and board members are not unconstitutional and that the agency can continue operating just as it always has.

The second possible outcome is that the Supreme Court, citing Seila Law v. Consumer Financial Protection Bureau and Collins v. Yellen, decides that the removal protections for these two groups are unconstitutional but that this can be remedied by simply cutting those protections out of the statute and allowing the president to fire NLRB ALJs and board members at will.

The final…