A recent webinar hosted by NYU’s Center for Labor and Employment Law and the Institute of Judicial Administration brought together leading experts to discuss mounting constitutional challenges to the National Labor Relations Board (NLRB). The November 14 panel featured former NLRB General Counsel Richard Griffin, Professor David Noll of Rutgers Law, and labor attorney Howard Robbins of Proskauer, with NYU Professor Samuel Estreicher moderating. The transcript of the webinar is available here.
The discussion comes at a critical time, as several high-profile cases, including litigation by SpaceX and Amazon, are challenging the NLRB’s structure on constitutional grounds. These cases represent the latest chapter in an ongoing debate about the powers of administrative agencies that dates back to the 1930s.
The panel focused on three main constitutional challenges to the NLRB. First, critics argue that restrictions on the President’s ability to remove NLRB members violate the Constitution’s separation of powers. Unlike some other agencies, NLRB members can only be removed for misconduct, not for policy disagreements or inefficiency. While the Supreme Court has historically allowed such protections for multi-member agencies through its 1935 Humphrey’s Executor decision, recent cases suggest the Court may be reconsidering this position.
Second, challengers are targeting the NLRB’s administrative law judges (ALJs), who conduct initial hearings in labor disputes. These judges have two (possibly more) layers of removal protection – they can only be removed by the Board, which itself is insulated from presidential control, and they have a right to appeal to the Merit System Protection Board, which is similarly insulated. While some argue this arrangement violates the Supreme Court’s Free Enterprise Fund decision, the panelists noted important distinctions: unlike the accounting board at issue in that case, NLRB judges primarily handle adjudication rather than policymaking, and their decisions have no precedential effect until affirmed by the Board.
Third, following the Supreme Court’s recent Jarkesy decision requiring jury trials for SEC fraud cases, some wonder whether certain NLRB proceedings might also trigger Seventh Amendment jury rights. The panelists generally agreed this was less concerning for the NLRB, since its remedies focus on reinstatement and back pay rather than penalties, despite recent expansion of “make whole” remedies.
The discussion highlighted practical implications beyond the constitutional theory. As Griffin noted, if critics succeed in dismantling the NLRB’s administrative process, both unions and employers may face a worse alternative—litigating labor disputes before federal judges who lack expertise in this complex area. Panelists suggested some employers may be using these constitutional arguments strategically to delay Board proceedings.
Looking ahead, the panelists predicted the Supreme Court may be hesitant to broadly invalidate removal protections for multi-member agencies, in part because doing so could threaten the Federal Reserve’s independence. However, they acknowledged the Court appears increasingly skeptical of restrictions on presidential control over administrative agencies.
The conversation reflects a broader tension in administrative law between competing visions of executive power. While some argue a strong unified executive requires direct presidential control over agencies, others contend Congress can create some independence to ensure expert, nationally uniform, relatively non-political administration of complex regulatory schemes. How courts resolve these challenges to the NLRB may signal the future of the administrative state more broadly.
The webinar provided a timely analysis of these issues as cases work their way through the courts. While the ultimate outcome remains uncertain, the discussion suggested that some aspects of the NLRB’s structure may face modification, even if wholesale invalidation appears unlikely. The practical impacts on labor relations and administrative governance will likely reverberate well beyond the specific constitutional questions at issue.
This post was written with the assistance of generative AI, in part to demonstrate how AI can be used effectively for various types of legal writing. Verdict managing editor David Kemp used the following prompt on Claude AI (3.5 Sonnet) and uploaded the transcript of the webinar: “Act as a labor law expert, and draft a blog post for a legal commentary website that provides context for this transcript. The blog post should introduce the event, summarize the discussion, and place them into context. It should use a professional tone and avoid legal jargon without sacrificing precision.” NYU Law professor Samuel Estreicher reviewed the AI-generated text.
