Three constitutional attacks on the NLRB

Employers are going after the NRB on three different grounds.
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First, the NRB Members can only be removed for cause. The argument is that this violates the separation of powers.

Second, the ALJ is the same thing.

Third, certain remedies that the General Counsel wants maybe have to have a jury trial.

So the NLRB members can't be fired at will by the President. And there's a 2022 Supreme Court case involving the Securities Exchange Commission. The Court held that the President can remove them at will. Now the question is whether the NLRB exercises executive powers. Well, certainly, when the General Counsel wants to go to district court to get an junction, she has to get the Board's approval and that is clearly an executive power.

When it comes to the ALJs, they're doubly removed because they're entitled to a hearing in front of the Merit System Protection Board, and those folks can't be removed by the President except for malfeasance.

And finally, the General Counsel is coming up with new remedies. For example, an employee who's illegally discharged gets reinstated with back pay and that's fine. Then she wants things like, well, maybe that employee had to pay their own doctor fees or they got behind on the mortgage, and she wants those to be remedied. Well, that's starting to sound more like a legal remedy rather than an equitable remedy which brings in to play the 7th Amendment which requires a jury trial, which of course the NLRB cannot do.