Ninth Circuit Rejects Challenges to whether NLRB is Unconstitutional

In NLRB v. North Mountain Foothills Apartments LLC (9th Cir. Oct. 28, 2025), the Ninth Circuit rejected three major constitutional challenges to the NLRB, holding that:

Removal protections for NLRB Administrative Law Judges do not violate Article II;
NLRB unfair labor practice proceedings do not violate the Seventh Amendment right to a jury trial; and the agency’s combined investigative and adjudicative structure does not violate due process.

Article II (Presidential removal power)
North Mountain argued that ALJs are unconstitutionally shielded from presidential removal, similar to arguments accepted by the Fifth Circuit in the SpaceX case. The Ninth Circuit disagreed, relying on Humphrey’s Executor and noting that no presidential removal attempt had occurred—making the challenge moot. This directly contrasts with the Fifth Circuit’s view that merely being subjected to proceedings before insulated ALJs constitutes harm.

Seventh Amendment (Right to jury trial)
North Mountain claimed that the NLRB’s expanded “make-whole” remedies resemble compensatory damages, triggering a jury-trial right. The Ninth Circuit rejected this, reaffirming Jones & Laughlin Steel and relying on its recent Macy’s decision, holding that such remedies are equitable and restorative, not legal or punitive.

Due process (Dual roles)
The company also argued that the NLRB’s investigative and adjudicative roles violate due process. The court dismissed this claim, citing FTC v. Cement Institute and Ninth Circuit precedent to emphasize that the General Counsel prosecutes while ALJs and the Board adjudicate, meaning the functions are not improperly merged.

Takeaway
For employers in Ninth Circuit states and territories, constitutional challenges to the NLRB’s structure remain unlikely to succeed, in sharp contrast to more receptive courts like the Fifth Circuit.