SpaceX filed its lawsuit against the NLRB in US District Court for the Southern District of Texas, claiming that the NLRB structure violates US law because the administrative law judge cannot be removed by the president of the United States. SpaceX made a virtually identically argument recently when it sued the US attorney general and two other Department of Justice officials in an attempt to stop a separate hiring-discrimination case.
"NLRB ALJs are 'Officers of the United States' under the Constitution's Appointments Clause—not mere employees—because among other things, they hold continuing offices through which they preside over adversarial hearings, receive testimony, shape the administrative record, and prepare proposed findings and opinions," SpaceX argued.
. . . SpaceX's lawsuit argues that NLRB members act as both prosecutor and judge. Quoting The Federalist No. 47 by James Madison, SpaceX wrote that the "NLRB's current way of functioning is miles away from the traditional understanding of the separation of powers, which views '[t]he accumulation of all powers legislative, executive and judiciary in the same hands' as 'the very definition of tyranny.'"
SpaceX is banking in part on an April 2023 Supreme Court ruling in a case involving the Federal Trade Commission and Securities and Exchange Commission. That ruling didn't resolve challenges to the agencies' use of administrative law judges, but found that federal district courts have jurisdiction to hear lawsuits over whether the agency structure is unconstitutional.
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Yes!