Two companies are defending against charges from the NLRB by questioning the Board’s constitutionality. The National Labor Relations Act created the NLRB in 1935, and the Board has issued thousands of administrative rulings since then. Nevertheless, SpaceX and Trader Joe’s are asserting that the Board’s very structure violates Article II of the U.S. Constitution as well as the Fifth and Seventh Amendments.
Specifically, the suits allege that the removal protection accorded by the NLRA to NLRB members and ALJs conflicts with the President's broad powers under Article II to remove executive officers. The suits also contend that NLRB proceedings violate Fifth Amendment due process rights because the Board—which can prosecute and judge the case and change federal labor policy in the process—would be exercising prosecutorial, judicial, and legislative authority in the same case. Furthermore, the cases argue that the Board’s trial system violates the Seventh Amendment by denying companies the right to a jury. The same law firm represents both companies.