The National Labor Relations Board (NLRB) is led by five presidentially appointed board members who may be removed from office only for neglect of duty or malfeasance. In 2022, eight former employees of Space Exploration Technologies Corp. (SpaceX) filed a complaint with the NLRB against the company, alleging that SpaceX had engaged in unfair labor practices. In response, SpaceX challenged the structure of the NLRB in the Southern District of Texas, arguing among other things that the NLRB’s leadership structure is unconstitutional because the president can remove the agency’s board members only for good cause, not at will. After the district court failed to grant SpaceX’s request for a preliminary injunction, the company appealed to the Fifth Circuit. In September 2024, CAC filed an amicus brief in support of the NLRB. 

SpaceX argues that under the Supreme Court’s 2020 decision in Seila Law LLC v. CFPB, the NLRB’s board members must be removable at will by the president because they exercise substantial executive power. Our brief shows why this is wrong. 

We first demonstrate that Seila Law did not call into question the legitimacy of agencies structured like the NLRB, sometimes referred to as multimember independent agencies. As we explain, Seila Law addressed only the new phenomenon of agencies led by a single director who is not removable at will. Based on three unique features of these single-director independent agencies, the Court concluded that they represent a novel intrusion on presidential authority that clashes with constitutional structure. The Court was clear, however, that it was not overruling its precedent upholding similar removal limits for the leaders of “a traditional independent agency, run by a multimember board.” None of the reasons the Supreme Court gave for striking down the leadership structure of the CFPB in Seila Law apply to the NLRB—a prototypical multimember agency that resembles agencies dating back 150 years in every constitutionally significant way.  

Our brief next explains why long-established practice has placed the validity of multimember independent agencies like the NLRB beyond doubt. In separation-of-powers cases, courts place significant weight upon historical practice, because it embodies the compromises and working arrangements that the elected branches of government themselves have reached. Congress has been assigning regulatory authority to multimember independent agencies for most of the nation’s history, beginning nearly 150 years ago. Supreme Court decisions, including Seila Law, have consistently confirmed the validity of these traditional agencies. The NLRB, which is nearly a century old, cannot be distinguished from the host of other multimember independent agencies that have long populated the executive branch. 

In short, the NLRB’s leadership structure is consistent with Supreme Court precedent and established practice.