National Labor Relations Board; Jennifer Abruzzo, in her official capacity as the General Counsel of the National Labor Relations Board ; Marvin E. Kaplan, in his official capacity as the Chairman of the National Labor Relations Board ; Marvin E. Kaplan, in his official capacity as Board Member of the National Labor Relations Board ; Gwynne A. Wilcox, in her official capacity as Board Member of the National Labor Relations Board ; David M. Prouty, in his official capacity as Board Member of the National Labor Relations Board ; John Doe, Administrative Law Judge NLRB ,

Defendants—Appellants ,

consolidated with

24-40533

Page 2National Labor Relations Board; Jennifer Abruzzo, in her official capacity as the General Counsel of the National Labor Relations Board ; Marvin E. Kaplan, in his official capacity as the Chairman of the National Labor Relations Board ; Marvin E. Kaplan, in their official capacities as Board Members of the National Labor Relations Board ; Gwynne A. Wilcox, in their official capacities as Board Members of the National Labor Relations Board ; David M. Prouty, in their official capacities as Board Members of the National Labor Relations Board ; John Doe, in their official capacity as an Administrative Law Judge of the National Labor Relations Board ,

Defendants—Appellants ,

consolidated with

Page 3Appeals from the United States District Courts for the Western, Southern, and Northern Districts of Texas USDC Nos. 6:24-CV-203, 3:24-CV-198, 4:24-CV-798

Before Wiener, Willett, and Duncan, Circuit Judges .

Don R. Willett, Circuit Judge :

Congress created the National Labor Relations Board in 1935 to administer and enforce the National Labor Relations Act, the cornerstone of American labor law. Like many independent federal agencies, the NLRB relies heavily on “administrative adjudication.” Its administrative law judges ( ALJ s) preside over claims of NLRA violations and issue initial decisions, which are subject to review by the agency’s five-member Board—a quasijudicial body of presidential appointees that sits atop the NLRB ’s hierarchy.

Board Members may be removed by the President only “for neglect of duty or malfeasance in office[.]'¹ And ALJ s may be removed only “for good cause,' as determined by the Merit Systems Protection Board ( MSPB )-itself an independent, quasi-judicial agency that adjudicates '[f]ederal employee appeals from agency personnel actions.'²

In this consolidated appeal, SpaceX, Energy Transfer, and Findhelp (together, the Employers) each faced unfair-labor-practice complaints. Before administrative proceedings began, each filed suit in a different federal district court, challenging the constitutionality of the NLRB ’s structure— specifically, the dual for-cause removal protections shielding both Board Page 4Members and ALJ s.³ Each court granted a preliminary injunction, halting the agency’s proceedings.

On appeal, the NLRB argues that the district courts (1) lacked jurisdiction to enjoin ongoing Board proceedings, and (2) abused their discretion in doing so, because the Employers are unlikely to prevail on the merits and have not shown irreparable harm.⁴

We disagree on both counts. First, nothing in federal law strips federal courts of jurisdiction to hear these claims-or to enjoin unconstitutional agency proceedings. Second, the district courts acted well within their discretion in granting preliminary relief.

ALJ s are inferior officers insulated by two layers of for-cause removal protection—an arrangement the Supreme Court and this circuit have both held unconstitutional. As for the Board Members, precedent is less definitive. But the Supreme Court and this court have both cautioned against extending Humphrey’s Executor to agencies that are not a “mirror image” of the Federal Trade Commission.

Page 5The Employers have made their case and should not have to choose between compliance and constitutionality. When an agency's structure violates the separation of powers, the harm is immediate—and the remedy must be, too.

We AFFIRM .

Before turning to the legal issues, 5 we briefly set out the NLRB ’s statutory framework. Federal law secures certain labor rights, and the NLRB

'A case becomes moot, [] 'only when it is impossible for a court to grant any

effectual relief whatever to the prevailing party.’” , 577 U.S.

153, 161 (2016), as revised (Feb. 9, 2016) (quoting Campbell-Ewald Co. v. Gomez Knox v. Service Emps. , 567 U.S. 298, 307

(2012)). When analyzing mootness, courts should proceed 'claim-by-claim.'

v. Vega United States , 960 F.3d 669, 673 (5th Cir. 2020). “Further, a case is not necessarily moot because

it’s uncertain whether the court’s relief will have any practical impact on the plaintiff.” Dierlam , 977 F.3d at 477.

Here, the parties agree as to the underlying constitutional issue, but they do not agree as to the propriety of the injunction; the NLRB continues to seek reversal of the lower courts’ decisions. The NLRB has a concrete interest in vacating those injunctions so it can resume its investigations, while the Employers have an equally concrete interest in preserving them—and in sustaining the finding that they showed irreparable harm.

Page 6is tasked with investigating, adjudicating, and remedying 'unfair labor practices” that infringe those rights.

The NLRB is divided into two distinct components: (1) an investigative and prosecutorial arm, led by a presidentially appointed General Counsel, and (2) an adjudicatory body-a five-member Board, also appointed by the President—that reviews ALJ decisions.

When an employee files a charge against an employer, a regional NLRB officer investigates. If the officer finds sufficient evidence, the General Counsel files a formal complaint. The complaint is then assigned to an ALJ , who builds the administrative record and conducts a hearing.⁶ Once the ALJ issues a decision and recommended order, either party may seek review by filing “exceptions” with the Board. If no exceptions are filed, the ALJ 's ruling automatically becomes the decision of the Board.⁷ But if exceptions are filed, the Board may adopt the ALJ 's recommendation or issue its own decision.

Furthermore, the change in Executive policy does not alter the reality that the Board-Member-andALJ protections are still on the books. Until Congress repeals them or an Article III court strikes them down, the President is still bound by those provisions. See United States v. Klein , 80 U.S. 128, 148 (1871). The contested NLRA provisions have not been repealed or sunset. See Spell v. Edwards , 962 F.3d 175, 179 (5th Cir. 2020). Accordingly, the disagreements articulated by the parties are sufficient to maintain a live case or controversy under Article III .

Page 7A party dissatisfied with the Board’s decision may seek review in the United States Court of Appeals for the circuit where the alleged unfair labor practice occurred.⁸

The removal protections for Board Members and ALJ s differ in both form and degree. Board Members may be removed by the President only “for neglect of duty or malfeasance in office, but for no other cause.'⁹ ALJ s, by contrast, may be removed only “for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.'¹⁰

The MSPB is an independent agency separate from the NLRB . 11 Thus, the President—acting through the Board—may remove an ALJ only if the MSPB first finds good cause. And MSPB Members themselves enjoy for-cause removal protection.¹²

Page 8The Employers challenge the constitutionality of these multi-layered removal provisions.

SpaceX is a private aerospace company dedicated to its stated mission of 'making life multiplanetary.' To that end, it employs thousands of workers nationwide in rocket development and testing, rocket manufacturing, and spaceflight operations.

In December 2022, a former SpaceX employee filed an unfair-laborpractice charge with the NLRB . After investigating, the agency's regional office issued a complaint in March 2024 alleging that SpaceX’s severance agreements violated the NLRA . An administrative hearing was set for October.

In April 2024, SpaceX filed suit in the Western District of Texas, asserting that the NLRB ’s ALJ s and Board Members are unconstitutionally shielded from presidential removal. SpaceX moved for a preliminary injunction, which the district court granted.¹³

In granting relief, the court held that the removal provisions for both Board Members and ALJ s were unconstitutional; that SpaceX had shown irreparable harm absent relief; and that blocking unlawful agency action would not cause any cognizable public harm. The NLRB timely appealed.

Energy Transfer owns and operates 'one of the largest and most diversified portfolios of energy assets in the United States.' One of its subsidiaries is La Grange.

In November 2022, a La Grange employee filed an unfair-laborpractice charge with the NLRB . The employee was later terminated. In March 2024, the NLRB ’s regional office issued a complaint and notice of hearing against La Grange. An administrative hearing was set for July.

In June 2024, La Grange filed suit in the Southern District of Texas, alleging-among other claims-that the ALJ s and Board Members are unconstitutionally shielded from removal. La Grange then sought a preliminary injunction, which the district court granted.¹⁴

In granting relief, the court concluded that the ALJ s were unconstitutionally insulated from removal; that La Grange had shown it would suffer irreparable harm absent an injunction; and that the balance of equities favored granting relief. The court did not reach the question of the Board Members’ removal protections. The NLRB timely appealed.

C

Aunt Bertha, doing business as Findhelp, is a public benefit corporation that operates 'the largest network of free and reduced-cost social services in the United States.”

In April 2024, the NLRB issued a consolidated complaint and notice of hearing, alleging that Findhelp had committed multiple unfair labor practices. An administrative hearing was set for September.

Page 10In August 2024, Findhelp filed a similar suit in the Northern District of Texas, likewise alleging—among other claims—that the removal protections for ALJ s and Board Members are unconstitutional. That same day, Findhelp sought a preliminary injunction, which the district court granted.¹⁵

In granting relief, the court found that the ALJ s were unconstitutionally insulated from removal; that Findhelp had shown irreparable harm absent an injunction; and that the balance of harms and the public interest favored granting relief. The court did not reach the question of the Board Members’ removal protections. The NLRB timely appealed.

We begin, as we must, with the threshold question: jurisdiction.

The NLRB contends that the district courts lacked jurisdiction to enjoin Board proceedings, citing the Norris-LaGuardia Act-a statutory precursor to the NLRA . The Act states that “[n]o court of the United States . . . shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter.'¹⁶ According to the Board, this language strips district courts of authority to enjoin its proceedings. The Employers disagree.

To be sure, the Act withdraws jurisdiction from district courts in cases 'involving or growing out of a labor dispute.'¹⁷ The NLRB argues that thisPage 11 “capacious” phrase encompasses the Employers’ suits, because each arose from an unfair-labor-practice complaint. But that reading stretches the statutory text too far.

The Act defines 'labor dispute' as 'any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment.'¹⁸ And a case is said to “involve or [ ] grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees.'¹⁹

These suits fall outside that definition. First, they are not between the Employers and their employees—they are between the Employers and the NLRB . Second, the Employers are not “engaged in the same industry, trade, craft, or occupation”—they are distinct companies in unrelated sectors suing a federal agency. Third, the removal protections for ALJ s and Board Members do not concern 'terms or conditions of employment, or [] the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange” such terms. These disputes do not implicate wages, hours, working conditions, or even union representation. They have nothing to do with employee boycotts, union organization, or labor strikes. Nor do the Employers seek to block the Board from adjudicating any particular unfair-labor-practice charge. Rather, the claims concern Article II and the separation of powers. The Employers challenge the structure of thePage 12 Board itself—specifically, whether its Members and ALJ s are too insulated from presidential removal. That kind of structural claim does not “grow out of” a labor dispute.

The Supreme Court has also recognized that the Act embodies “a basic policy against the injunction of activities of labor unions ' 20 and was meant to “tak[e] the federal courts out of the labor injunction business except in [] very limited circumstances.'²¹ Congress passed the Act 'in response to federal-court intervention on behalf of employers through the use of injunctive powers against unions and other associations of employees”—a practice that, by turning injunctive powers against unions, had “caused the federal judiciary to fall into disrepute among large segments of this Nation’s population.'²² Congress was not aiming to bar constitutional challenges to agency structure; it was targeting judicial overreach against employees.

The text of the Act resolves the matter: both we and the district courts have jurisdiction to enjoin the NLRB .

Even if the Act’s plain text were not dispositive, these suits would still fall within the district courts’ jurisdiction. The Act is not a “special statutory review scheme,” but it functions similarly in one respect: it “divests district courts of their ordinary jurisdiction over the covered [types of] cases.'²³ Admittedly, the parties do not frame the Act as such—an omission that might Page 13normally amount to forfeiture.²⁴ But jurisdictional arguments are an “obvious exception” to forfeiture; subject-matter jurisdiction “can never be forfeited.'²⁵ With that in mind, we proceed.

In assessing whether a statutory review scheme strips district courts of jurisdiction, we consider the three Thunder Basin factors: (1) whether precluding district court jurisdiction would “foreclose all meaningful judicial review' of the claim; (2) whether the claim is 'wholly collateral to [the] statute's review provisions'; and (3) whether the claim lies 'outside the agency's expertise.'²⁶

All three Thunder Basin factors confirm that these structural challenges are not 'of the type' targeted by the Norris-LaGuardia Act's jurisdictional bar.

First, judicial review would be meaningless if delayed until after agency proceedings conclude. Regardless of the NLRB ’s decision, the harm alleged in the Employers' removal claims would persist. As in Axon Enterprise, Inc. v. Federal Trade Commission , the Employers contend they are being 'subject[ed] to an illegitimate proceeding, led by an illegitimate decisionmaker.'²⁷ If the injury is the process itself, review after the fact comes too late: 'A proceeding that has already happened cannot be undone,' rendering later review 'too late to be meaningful.'²⁸ Without jurisdiction, the Employers must endure an unconstitutional proceeding—Page 14 an injury that 'cannot be undone' ex post.²⁹ The first Thunder Basin factor favors the Employers.

Second, the claims are wholly collateral. The Employers are prospectively challenging the NLRB ’s authority to proceed at all—“rather than actions taken in the agency proceedings.'³⁰ As in Axon and Free Enterprise Fund v. Public Co. Accounting Oversight Board , they do not contest the outcome of any particular proceeding; they contest the Board's very power to act. In other words, they are challenging the NLRB 's power as such-not 'anything particular about how that power was wielded.'³¹ The Employers' constitutional claims are wholly collateral to any decision the NLRB might issue.

Third, the NLRB lacks the expertise to decide whether tenure protections for its Members and ALJ s’ violate Article II . As Free Enterprise Fund explained, 'Claims that tenure protections violate Article II . . . raise ‘standard questions of administrative’ and constitutional law, detached from ‘considerations of agency policy.’” 32 The NLRB 'knows a good deal about [labor] policy, but nothing special about the separation of powers.'³³ Those constitutional questions lie outside the agency's core competence-and squarely within the judiciary’s.

Page 15Because the district courts had the authority to enjoin the NLRB , we turn to whether they properly exercised it.

“We review the district court’s grant of [a] preliminary injunction for abuse of discretion, reviewing underlying factual findings for clear error and legal conclusions de novo.'³⁴ 'The test for whether to grant or deny a preliminary injunction is long-standing and familiar.'³⁵ A plaintiff seeking such relief must show four things: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm without an injunction; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest.³⁶ 'The first factor—likelihood of success on the merits—is ‘ the most important.''³⁷

As an initial matter, we consider whether severability affects the availability of preliminary injunctive relief. The NLRB contends that injunctive relief is inappropriate where severance could cure the alleged constitutional defect—namely, the removal protections for ALJ s and Board Members. The Employers counter that the possibility of severance has no bearing at the preliminary injunction stage. We agree with the Employers.

'Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any problematicPage 16 portions while leaving the remainder intact.'³⁸ And '[w]hen Congress has expressly provided a severability clause, [the court’s] task is simplified”— we 'presume that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision . . . unless there is strong evidence that Congress intended otherwise.'³⁹ The NLRA contains such a clause.⁴⁰

The NLRB points to two Supreme Court cases in which the Court severed unconstitutional removal provisions rather than striking down the entire statute.⁴¹ In Free Enterprise Fund , the Court acknowledged the 'elusive' nature of severability but ultimately severed the offending provisions from the Sarbanes-Oxley Act, preserving the remainder.⁴² Likewise, in Seila Law LLC v. Consumer Financial Protection Bureau , the Court severed the unconstitutional provisions and upheld the rest of the statute.⁴³

But those cases arose after final judgments and permanent relief—not at the preliminary injunction stage. As the district court in SpaceX observed,Page 17 '[a] statute must be found to be inoperative or unconstitutional as it was written before the issue of severance can be reached.'⁴⁴

Although the Employers sought declaratory judgments invalidating the removal provisions, those requests were not properly before the district courts-and they are not properly before us now.⁴⁵ If the Employers later prevail on the merits, we may then consider whether severance is appropriate. At this stage, however, the severability inquiry is premature and belongs to the merits phase, when the court considers final relief.

Accordingly, the possibility of severance does not preclude preliminary injunctive relief.

We now turn to the merits. Because the Employers seek a preliminary injunction, they 'must establish that [they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.'⁴⁶ The final two injunction factors — balance of harms and the public interest—“merge when the Government is the opposing party.'⁴⁷

Article II vests '[t]he executive Power' in a single individual: 'a President of the United States of America.'⁴⁸ It vests that power in no otherPage 18 person or branch. The Framers deliberately entrusted it to one President. As Hamilton warned, a plural executive would 'tend[] to conceal faults and destroy responsibility,” thus removing accountability to the electorate—the very people the Constitution, and through it, the Executive, exists to serve.⁴⁹

Even so, the Framers were pragmatic. They recognized that the President could not fulfill his duties “alone and unaided”—he would need subordinates.⁵⁰ To that end, they viewed the removal power as the mechanism for preserving “the chain of dependence,” whereby “the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.'⁵¹ This concept was not novel: “[t]he removal right’s inherency to the executive power stretches its roots back to England.'⁵²

Accordingly, because the executive power remains solely vested in the President, those who exercise it on his behalf must remain subject to his oversight.⁵³

Page 19'Yet not all removal restrictions are constitutionally problematic.'⁵⁴ For example, 'inferior officers' may receive certain for-cause protections.⁵⁵ Such protections are also permissible for some principal officers—but only in the narrow circumstance in which they 'act as part of an expert board.'⁵⁶

The question here is whether NLRB ALJ s and Board Members are principal or inferior officers—and then “whether the restrictions on their removal are sufficiently onerous, that the President has lost the ability to take care that the laws are faithfully executed.'⁵⁷

We begin with the constitutionality of the ALJ removal provisions. The NLRB contends that the ALJ s' tenure protections are constitutional.⁵⁸ Our precedent says otherwise.

Just two years ago, we held nearly identical removal protections for SEC ALJ s unconstitutional.⁵⁹ In Jarkesy v. Securities & ExchangePage 20 Commission , we confronted a two-layer removal scheme for SEC ALJ s: (1) ALJ s could be removed by the Commission only for 'good cause,' as determined by the MSPB ; 60 and (2) SEC Commissioners and MSPB Members themselves could be removed only 'for cause.'⁶¹

We thus concluded that “at least two layers of for-cause protection stand in the President’s way” of removing SEC ALJ s.⁶² We further held that SEC ALJ s were 'inferior officers . . . because they ha[d] substantial authority within SEC enforcement actions.'⁶³ And because those protections left the SEC 's principal officers unable to 'intervene in their inferior officers’ [the ALJ s] actions except in rare cases,” the President, by extension, 'lack[ed] the control necessary to ensure that the laws [were] faithfully executed.'⁶⁴ We therefore held the removal restrictions unconstitutional.

The same analysis applies here. NLRB ALJ s, too, are protected by 'at least two layers of for-cause protection.'⁶⁵ The NLRB may remove its ALJ s only when the MSPB finds good cause-just like the SEC . 66 And

Comm’n , 132 F.4th 745, 746 (5th Cir. 2024). Accordingly, we reaffirmed that the “statutory removal restrictions on SEC ALJ s violate [] Article II .' Id.

Page 21MSPB Members are removable only for cause, regardless of whether they oversee SEC or NLRB ALJ s.⁶⁷

The NLRB has elsewhere acknowledged that 'Board judges, like SEC judges, are inferior officers.'⁶⁸ It now seeks to cabin that concession, arguing that “ NLRB ALJ s’ powers are materially more restricted in scope” than those of SEC ALJ s, citing their lack of sanction authority and the nonfinality of their decisions. But that understates the scope of NLRB ALJ s’ authority.

First, NLRB ALJ s may “admonish or reprimand, after due notice, any person who engages in misconduct at a hearing,” and may strike witness testimony for refusing to answer a question.⁶⁹ These are sanction powers which, though not identical, are hardly trivial and arguably more consequential than those held by SEC ALJ s.

Second, NLRB ALJ decisions become final, by regulation, in notuncommon circumstances—namely, “if no timely or proper exceptions are filed.'⁷⁰ Indeed, SEC ALJ decisions are less final: the SEC may review them 'on its own initiative,' even absent a party's request.⁷¹

If SEC ALJ s' removal protections are unconstitutional, the same must be true of NLRB ALJ s—whose powers are, if anything, more robust.

Page 22Because NLRB ALJ s are inferior officers insulated by two layers of forcause protection, the removal restrictions are unconstitutional.

The NLRB next contends that the Board Members' removal protections are constitutional under Humphrey’s Executor v. United States . 72 We disagree.

Humphrey’s Executor carved out an “‘exception’ to the general ‘rule’ that lets a president remove subordinates at will.'⁷³ There, the Supreme Court upheld removal restrictions-'for inefficiency, neglect of duty, or malfeasance in office”—for the Federal Trade Commission’s multi-member body of experts, reasoning that its commissioners exercised “quasi legislative and quasi judicial” functions and did not, at the time, wield “executive power in the constitutional sense.'⁷⁴

In the 90 years since, courts have been reluctant to extend Humphrey’s Executor beyond its facts. The Supreme Court has recognized it as a narrow exception, limited to 'multimember expert agencies that do not wield substantial executive power.'⁷⁵

Page 23Unlike the FTC commissioners in 1935, 76 NLRB Board Members today 'wield substantial executive power.'⁷⁷ They determine bargaining units, direct representation elections, adjudicate unfair-labor-practice charges, and seek enforcement of their orders in federal court.⁷⁸ They also appoint inferior officers, including the executive secretary, attorneys, regional directors, and ALJ s.⁷⁹ And the NLRA empowers the Board to petition federal district courts for injunctive relief against alleged unfair labor practices.⁸⁰ In short, Board Members execute the NLRA through 'administrative, policymaking, and prosecutorial authority.'⁸¹ That they may be removed only “for neglect of duty or malfeasance in office, but for no other cause” renders the removal provision constitutionally suspect under modern separation-of-powers doctrine.⁸²

Page 24Recent Supreme Court precedent points the same way. In staying an injunction that barred President Trump from removing NLRB Board Members Gwynne Wilcox and Cathy Harris, the Court observed that “the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.'⁸³ While the Justices were careful to say that they “d[id] not ultimately decide” the issue, their stay order reinforces our conclusion that Board Members’ insulation from presidential removal likely violates Article II . 84

The NLRB insists its removal protections survive because its structure mirrors that of the Consumer Product Safety Commission ( CPSC ) in Consumers’ Research v. CPSC . 85 There, we reaffirmed that Humphrey’s Executor 'still protects any 'traditional independent agency headed by a multimember board.''⁸⁶ The CPSC , like the FTC in Humphrey’s Executor , has five members, and no more than three from the same political party— reflecting Congress’s intent that the agency remain “non-partisan” and “act with entire impartiality.'⁸⁷ Although the CPSC 'exercises substantial executive power (in the modern sense),” its structure mirrors that of the FTC : a multimember board whose staggered appointment schedule “means that each President does ‘have an[] opportunity to shape [the Commission’s] leadership and thereby influence its activities.''⁸⁸ Additionally, the CPSC does not receive funds outside the appropriations process-so 'thePage 25 President can 'influence' the Commission's activities via the budgetary process.'⁸⁹ Those characteristics led us to uphold the CPSC 's removal protections.⁹⁰

Our precedent therefore requires looking not only at whether officers “wield substantial executive power,” but also at whether the agency shares the FTC ’s structural hallmarks and whether for-cause removal “ 'combine[s]' with 'other independence -promoting mechanisms' that 'work[] together' to 'excessively insulate' an agency from presidential control.'⁹¹ As we observed in Consumers’ Research , '[t]he contours of the Humphrey's Executor exception depend upon the characteristics of the agency before the Court.'⁹² And there, the CPSC was the “mirror image” of the FTC . 93

Here, the NLRB departs in critical respects. Both the Board Members and the General Counsel wield prosecutorial power. But while the General Counsel is politically accountable, the Board Members are not.⁹⁴ In Exela Enterprise Solutions v. NLRB , we held that Humphrey’s Executor didPage 26 not justify insulating the General Counsel’s “quintessentially prosecutorial functions” from presidential control. If that exception does not extend to the politically accountable General Counsel, it cannot reach the even-lessaccountable Board members.

Moreover, unlike the FTC and the CPSC , the NLRB has no statutory party-balancing requirement. The Supreme Court has cabined Humphrey’s Executor as 'permit[ting] Congress to give for-cause removal protections to a multimember body of experts” where that body is statutorily 'balanced along partisan lines.'⁹⁵ That is not true of the NLRB . A President may fill four of its five seats with members of his own party, and the Board’s work is widely acknowledged as politically charged.⁹⁶ This absence of structural balancing undermines the “independence” rationale underlying Humphrey’s Executor .

Page 27Admittedly, the merits question for Board Members' removal protections is a closer call than for ALJ s. But both the Supreme Court and this circuit have declined to extend Humphrey’s Executor to agencies that are not a “mirror image” of the FTC . The NLRB ’s structure and powers take it outside that narrow exception.

We therefore conclude that the Employers are likely to succeed on the merits of their challenge to the Board Members’ removal protections.

2

Having found a likelihood of success on the merits, we turn to irreparable harm. The NLRB says the Employers have shown none, insisting they must prove a distinct injury flowing from the constitutional violations. We disagree.

First, the NLRB argues that parties are not entitled to injunctive relief “merely because an act is unconstitutional,” drawing a line between structural constitutional claims and those involving individual rights, such as the First Amendment or privacy. That line is illusory: 'The structural principles secured by the separation of powers protect the individual as well.'⁹⁷ Nothing in the NLRB 's argument-or in its cited authoritiessuggests treating structural claims differently.

Second, the NLRB leans heavily on the Supreme Court's decision in Collins v. Yellen to argue that the Employers’ harms are not irreparable. That misreads Collins —and the decisions surrounding it.

Page 28In Seila Law , the Court struck down the CFPB 's single-director removal protection. The CFPB had ordered Seila Law to 'produce information and documents related to its business practices,'⁹⁸ but the firm refused, arguing that the director’s insulation from presidential removal was unconstitutional. The Court agreed, holding that subjection to unlawful executive power is a 'here and now' injury sufficient for Article III standing.⁹⁹

A year later, in Collins , the Court likewise held that the FHFA Director was unconstitutionally insulated.¹⁰⁰ It reiterated that 'whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge.'¹⁰¹ But because the plaintiffs sought retrospective relief, the Court required proof that the unconstitutional removal restriction actually affected the agency’s decision and, in turn, the plaintiffs’ rights.¹⁰² In short: backward-looking relief requires a causal link between the violation and the outcome.

Soon after, our en banc court in Cochran v. U.S. Securities and Exchange Commission held that a plaintiff could seek to enjoin ongoing SEC proceedings before ALJ s unconstitutionally insulated from removal. The plaintiff was not attacking past agency action but seeking “an administrativePage 29 adjudication untainted by separation-of-powers violations.'¹⁰³ Being subjected to such a proceeding, we held, is itself a concrete injury warranting prospective relief.

We took a different approach in Community Financial , where plaintiffs sought to block enforcement of a final rule issued under an unconstitutionally insulated director.¹⁰⁴ There, following Collins , we required proof of three things: “(1) a substantiated desire by the President to remove the unconstitutionally insulated actor, (2) a perceived inability to remove the actor due to the infirm provision, and (3) a nexus between the desire to remove and the challenged actions taken by the insulated actor.'¹⁰⁵

Finally, in Axon , the Supreme Court held that parties could bypass an agency’s review scheme to challenge its very power to proceed. The plaintiffs did not contest any specific 'actions taken in the agency proceedings,'¹⁰⁶ but instead argued they were entitled not to be subjected to proceedings conducted by unconstitutionally insulated ALJ s.¹⁰⁷ That is, they challenged the agency's 'power to proceed at all.'¹⁰⁸ The Court agreed, holding that “being subjected” to “unconstitutional agency authority” is “a here-andPage 30now injury'-one 'impossible to remedy once the proceeding is over.'¹⁰⁹ A 'proceeding that has already happened cannot be undone.'¹¹⁰

That is this case. The Employers’ injury is Axon ’s injury: the “hereand-now injury” of “being subjected to unconstitutional agency authority.'¹¹¹ And that harm is irreparable.

The NLRB insists Collins and Community Financial foreclose such a finding. They do not. Collins governs retrospective relief from final agency action. The Employers here seek no such thing. They challenge not past agency conduct but the validity of the ongoing proceeding itself. Community Financial likewise involved retrospective relief from a final rule and required a causal link between the unconstitutional removal provision and the challenged agency action.¹¹² Here, the proceeding is the injury. The harm is not downstream from the process—it is the process.

The NLRB tries to cabin Axon to jurisdiction. But its reasoning fits irreparable harm hand-in-glove: once an unconstitutional proceeding begins, the damage is done. That is the essence of irreparability. No further showing—such as how the outcome might differ under a valid structure—is required.¹¹³ Waiting until the end would be no remedy at all.

Page 31Binding precedent, first principles, and common sense align: forcing the Employers to appear before an unconstitutionally structured agency inflicts irreparable harm.¹¹⁴

One final element remains: the balance of the equities and the public interest. These two factors “merge when the Government is the opposing party.'¹¹⁵

The Government suffers no cognizable injury when a court halts unlawful agency action.¹¹⁶ Nor does the public interest suffer when an unlawful agency structure is prevented from subjecting “countless individuals and companies' to unconstitutional proceedings.¹¹⁷ To the contrary, 'the public is served when the law is followed.'¹¹⁸ And the publicPage 32 is disserved when “accountability” evaporates because “a person or entity other than Congress exercises legislative power.'¹¹⁹

The NLRB is correct that '[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.'¹²⁰ And when 'the State is the appealing party, its interest and harm merges with that of the public.'¹²¹ But standing alone, these considerations are 'not enough' to 'outweigh the other factors.'¹²²

Here, the equities and the public interest align in the same direction: both favor preliminary relief.

The Constitution does not countenance unlawful power. And when the Constitution draws boundaries, neither agency expedience nor institutional inertia can erase them. The district courts recognized as much and acted to prevent an injury that, once inflicted, cannot be undone. Because the Employers have shown a likelihood of success, irreparable harm, and equities that tip sharply in their favor, we AFFIRM .

Page 33Jacques L. Wiener, Jr. , Circuit Judge , concurring in part and dissenting in part:

While I concur in most of the majority opinion's holdings, I write separately to dissent from its holding that the Employers are entitled to a preliminary injunction regarding the removability of NLRB board members. Because the Employers have failed to prove that they would suffer irreparable harm in the absence of a preliminary injunction for that specific issue, I would instead reverse the district court’s decision granting injunctive relief.

The majority opinion holds that the Employers have satisfied the irreparable harm prong because they would be subjected to a 'here-andnow” injury if they participated in the NLRB agency proceedings.¹ To me, this view misinterprets Supreme Court and Fifth Circuit precedent because it lowers the Employers’ burden because it does not require them to allege additional causal harm that they would face if subjected to proceedings before the NLRB board members. As a result, the majority's holding creates a divide between our circuit and the Tenth, Sixth, and Second Circuits.

The only case arising out of Supreme Court and Fifth Circuit precedent that addresses injunctive relief on the merits in a removability context is Collins v. Yellen , 594 U.S. 220 (2021). In Collins , the Supreme Court explained why challenges to unconstitutional removal provisions—as opposed to unlawful appointment provisions-require that the provisions inflict compensable harm. Id. at 259. The need for the additional element Page 34arises because, in instances concerning an unconstitutional removal provision, 'the unlawfulness of the removal provision does not strip the [officer] of the power to undertake the other responsibilities of his office[.]” Id. at 258 n.23. In other words, a duly appointed officer is not 'illegitimate' and 'the mere existence of an unconstitutional removal provision . . . generally does not automatically taint Government action by an official unlawfully insulated.” Id. at 267 ( Thomas, J. , concurring). Accordingly, the Court explained that, even in instances when parties successfully prove that a removal provision is unconstitutional, they must also show how that caused them additional harm to be entitled to relief. See id. at 258 n.23 (majority opinion); see also id. at 270-71 ( Thomas, J. , concurring) ('I seriously doubt that the [plaintiffs] can demonstrate that any relevant action by an [officer]”—who the Court held was protected by an unconstitutional removal provision—“violated the Constitution. And, absent an unlawful act, the [plaintiffs] are not entitled to a remedy.'); Leachco, Inc. v. Consumer Safety Prod. Comm’n , 103 F.4th 748, 757 (10th Cir. 2024), cert denied, 145 S. Ct. 1047 (2025) (“[A]s explained by the majority in Collins , plaintiffs who succeed in a constitutional challenge to a removal provision are not automatically entitled to relief—they must show that the removal provision caused some harm to them beyond the mere existence of the unconstitutional provision.'). For unlawful appointments, however, the opposite is true, because unlawfully appointed officers are vested with authority that was never constitutionally theirs to exercise. Thus, their actions would be void ab initio . Collins , 594 U.S. at 257 (majority opinion). While Collins concerned a party’s entitlement to retrospective relief regarding challenges to unconstitutional removal provisions, binding precedent mandates that we find the 'causal harm' element is still required for parties seeking prospective relief. See discussion infra at 4-8.

Page 35Here, the Employers never claim that the NLRB board members were unlawfully appointed. Rather, they claim that such officers are unconstitutionally insulated from the President's control for purposes of removal. Collins explains that, because these officers were constitutionally appointed, not all of their actions are 'tainted' and that they have 'the power to undertake other responsibilities of [their] office.” 594 U.S. at 258 n.23. Since such officers are not wholly 'illegitimate,' it follows that to qualify for injunctive relief, the Employers must show some harm that the alleged unconstitutional clauses caused to the underlying agency proceedings.

The Tenth, Sixth, and Second Circuits have used this same reasoning and have required aggrieved parties to show that the unconstitutional removal provision interfered with the underlying proceedings. See Leachco, Inc. , 103 F.4th at 753 ('[U]nder current Supreme Court precedent, succeeding in a constitutional challenge to an agency official's removal protections is not sufficient, by itself, to warrant relief from proceedings before that agency official. Instead, the plaintiff must show that the unconstitutional removal protections made a difference in its case[.]'); YAPP USA Auto. Sys. Inc. v. NLRB , No. 24-1754, 2024 WL 4489598 at *3 (6th Cir. 2024) (holding that plaintiff's 'bare claim that the NLRB proceeding would be ‘illegitimate’ is not enough ” to satisfy the irreparable harm prong because the plaintiff 'has not explained how the removal protections for the NLRB Board Members or NLRB ALJ s would ' specifically impact' the upcoming proceeding.') (emphasis in original) (internal citations omitted); Consumer Fin. Prot. Bureau v. L. Offs. of Crystal Moroney, P.C. , 63 F.4th 174, 180 (2d Cir. 2023) (' CFPB ') ('[A] party seeking to void an agency action must first show but-for causation linking an unconstitutional removal protection to the complained-of agency action'Page 36 because doing so 'properly matches the constitutional injury to the requested remedy.”).

Relying on Collins , this court has outlined three examples of how the Employers could establish the requisite harm:

(1) A substantiated desire by the President to remove the unconstitutionally insulated actor, (2) a perceived inability to remove the actor due to the infirm provision, and (3) a nexus between the desire to remove and the challenged actions taken by the insulated actor.

Cmty. Fin. Servs. Ass’n v. Consumer Fin. Protect. Bureau , 51 F.4th 616, 632 (5th Cir. 2022), rev’d and remanded on other grounds , 601 U.S. 416 (2024), and reinstated in part by 103 F.4th 930 (5th Cir. 2024). The Employers have not established the causal harm element through these or any other examples.

Nevertheless, the majority opinion attempts to collage together various decisions by the Supreme Court and this circuit to hold that the Employers need not allege a causal element to prove the irreparable-harm prong. Ante at 28-32. It ultimately concludes that the Supreme Court's holding in Axon Enterprise Inc. v. Federal Trade Commission , 598 U.S. 175 (2023) requires us to find that Collins only applies to cases in which parties seek retrospective relief. Ante at 30-32.² Doing that, however, results in Page 37applying Axon and other case precedent out of context because it takes the Supreme Court’s dicta and holdings on jurisdictional questions to resolve issues in a completely separate area of law. Instead, this same precedent requires us to reverse the district court’s decision because, at this stage of the analysis, we are tasked with determining whether the Employers are entitled to injunctive relief.³

Specifically, the majority holds that the Supreme Court’s discussion in Axon overrules portions of this court's dicta in Community Financial Services Association v. Consumer Financial Protection Bureau (' CFSA '). They suggest that we should interpret Collins to be inapplicable in those instances when a party seeks prospective relief.⁵¹ F.4th at 616. I respectfully dissent and in doing so, aim to provide necessary context to the cases that the majority opinion cites to but omits from its analysis.

In CFSA, this court emphasized that parties are required to show causal harm regardless of whether they are seeking prospective or retrospective relief. Id. at 631. While CFSA did not discuss injunctive relief on the merits, it did consider questions of unconstitutional removal provisions at the summary judgment stage. Id. at 626. There, we explained that ' Collins did not rest on a distinction between prospective and retrospective relief” and outlined the three ways that parties can establish causal harm regarding unconstitutional removal provisions. Id. Other circuits have also reached this conclusion. See, e.g. , CFPB , 63 F.4th at 180-181 (“[T]o void an agency action due to an unconstitutional removal protection, Page 38a party must show that the agency action would not have been taken but for the President’s inability to remove the agency head.”) (emphasis in original). In Cochran v. U.S. Securities and Exchange Commission , our en banc court held that a party has standing to challenge the constitutionality of removal provisions in agency proceedings.²⁰ F.4th 194 (5th Cir. 2021). Notably, Cochran strictly considered questions of jurisdiction and applied the Thunder Basin factors to reach its conclusion-much like the majority opinion presently does in its section on jurisdiction. See Ante at 10.

In Axon , decided after CFSA , the Supreme Court discussed 'hereand-now” injuries, and focused on whether the district court had jurisdiction to issue a preliminary injunction against federal agencies. 598 U.S. at 175. As a refresher, such injuries occur when parties are subjected to an ongoing 'illegitimate proceeding, led by an illegitimate decisionmaker,' and that constitutes an injury because “it is impossible to remedy once the proceeding is over.' Id. at 191. The Court then held that district courts have the jurisdiction to hear cases and issue relief when parties who seek prospective relief suffer “here-and-now” injuries. See id. at 182–83, 196. Importantly, at the outset of the opinion, the Court stated “[o]ur task today is not to resolve th[e] challenges [to the agencies’ structure]; rather, it is to decide where they may be heard.” Id. at 180 (emphasis added).

And finally, when CFSA returned to us on remand, we reaffirmed the part of its earlier-issued opinion that explained there is no distinction in cases seeking prospective or retrospective relief. Cmty. Fin. Servs. Ass’n of Am., Ltd. v. CFPB , 104 F.4th 930 (5th Cir. 2024).

Presently, the majority opinion mistakenly conflates the jurisdictional ability of district courts to hear and issue injunctive relief in 'here-and-now' injury cases with the burden placed on the party seeking injunctive relief. It holds that, after Axon , a party may challenge an unconstitutional removal Page 39provision in cases seeking only prospective relief, and to establish irreparable harm, that party need not demonstrate any causal harm—and further, that Cochran supports this reading. See Ante at 29-31. This is problematic because, as I have stressed, neither the Axon Court nor the Cochran court addressed the issue of irreparable harm-or any other issue regarding injunctive relief on the merits. Here, the majority opinion even “notes” that it is taking many cases out of their intended context. See Ante at 30 at n.110 (citing Cochran , then stating: “We note that this discussion of harm occurred in the context of a standing analysis'); id. at 29 n.104 (noting that the Supreme Court's discussion in Seila Law LLC 'did not address the irreparability of the harm in the context of an injunction').⁴ Using Axon to cabin CFSA and distinguish between prospective and retrospective relief is worrisome because it stretches Axon past the Supreme Court's intent and also creates a circuit split.

In a factually similar case, the Tenth Circuit explained why it declined to extend Axon when addressing the merits of a preliminary injunction claim for prospective relief. Critically, it stated that ' Axon does not help [the plaintiff] to establish irreparable harm because Axon did not address the issue of irreparable harm, or any other issue regarding entitlement to injunctive relief.” Leachco, Inc. , 103 F.4th at 758.

In Leachco, Inc. v. Consumer Product Safety Commission , Leachco sought a preliminary injunction against the Consumer Protection Safety Commission and claimed that its commissioners and ALJ s were protected by unconstitutional removal provisions. Id. at 748. That court affirmed the district court’s denial of injunctive relief because Leachco did not establish Page 40the irreparable harm prong. Id. at 753-59. It held that claiming that an agency’s officers “possess unconstitutional removal protections,” without any connection to the proceeding, does not establish irreparable harm. Id. at 753. Even though Leachco sought prospective relief, the Tenth Circuit expressly declined to apply Axon , reasoning that Axon strictly considered jurisdictional questions and did not discuss injunctive relief. Id. at 758-59 ('We do not believe [the Axon Court] statements help Leachco establish irreparable harm here because they were made in the context of the Court’s jurisdictional Thunder Basin analysis, and not within the context of determining the plaintiffs’ entitlement to preliminary injunctive relief.”). It also discussed why it understands Supreme Court precedent to support a narrow reading of Axon ’s “here-and-now injury language.” See id.

The Tenth Circuit noted that this commentary originated from the Supreme Court's discussion in Seila Law LLC v. Consumer Financial Protection Bureau , 591 U.S. 197 (2020). There, the Court held that federal courts have the jurisdiction to reach the merits of a claim involving whether a removal provision violates the separation of powers. Once again, however, the discussion in Seila Law on this issue concerned standing and did not reach the question of whether the aggrieved party was entitled to injunctive relief. The Tenth Circuit further explained that, in Collins , the Supreme Court stressed that '[w]hat we said about standing in Seila Law should not be misunderstood as a holding on a party’s entitlement to relief based on an unconstitutional removal restriction.' Leachco, Inc. , 103 F.4th at 759 (quoting Collins , 594 U.S. at 259 n.24 (citing Seila Law , 591 U.S. at 210–12)). By declining to apply Axon to Leachco , Inc. , the Tenth Circuit reiterated that it was 'follow[ing] the Supreme Court's words of caution' that plaintiffs may only use 'here-and-now-injur[ies]' to establish standing -not to establish relief . Id. Doing otherwise would 'convert' Axon 'into a broad ruling that creates an entitlement on the merits to a preliminary injunction in Page 41every case where such constitutional challenges are raised.” Id. That court then denied Leachco injunctive relief because it failed to allege causal harm between the removal protections and agency proceedings. Id. And, under similar facts, other circuits have also reached the same conclusion. YAPP USA, 2024 WL 4489598, at *3 (The Sixth Circuit declining to find that Axon ’s holding helps parties satisfy the irreparable harm prong when seeking injunctive relief because '[t]he Court did not address the merits of those claims [for injunctive relief], but rather assessed whether federal courts have jurisdiction to hear the claims on the merits' (emphasis in original)); CFPB , 63 F.4th at 181 (The Second Circuit holding that Supreme Court precedent explains that regardless of whether a party seeks prospective or retrospective relief, it must establish causal harm between the purported unconstitutional removal provision and the underlying proceeding).

The majority opinion’s holding today impermissibly extends Axon in a way that the Tenth and Sixth Circuits have expressly rejected, and that the Second Circuit implicitly rejected.⁵ And it does so without acknowledging any of those cases. I conclude that, as a result, we are left with a circuit split that flouts the Supreme Court’s clear directive that the discussions in Axon and Seila Law on standing do not extend to a party’s entitlement to relief.

In sum, I respectfully disagree with the majority opinion’s conclusion that the Employers have satisfied the irreparable-harm prong by simply alleging they suffer a “here-and-now” injury. The Supreme Court has plainly indicated that parties are not automatically subject to the authority ofPage 42 “illegitimate” officers who might be protected by unconstitutional removal provisions, as that only occurs when such officers are unconstitutionally appointed . It follows logically that we must require the Employers to allege some type of causation between the unconstitutional removal provision and their injuries to be entitled to injunctive relief, as other circuits have expressly stated. As I would reverse the district court’s decision, I respectfully dissent.