Is the NLRB Unconstitutional?
Is the NLRB Unconstitutional?
The constitution can mean anything you want it to mean.
In January of this year, SpaceX sued the National Labor Relations Board (NLRB) in the Southern District of Texas seeking to have the agency’s various actions against the company enjoined on the basis that the NLRB is operating unconstitutionally in three different ways.
Shortly after it was filed, that case was moved to California, which takes it out of the Fifth Circuit and into the Ninth Circuit where the legal environment is less favorable to SpaceX. Some of the arguments contained in SpaceX’s brief have also been adopted in other proceedings involving Trader Joe’s and Starbucks.
The three arguments for unconstitutionality are as follows:
The NLRB administrative law judges (ALJs) are too insulated from presidential removal, which violates the constitutional requirement that the president must “take Care that the Laws be faithfully executed.”
The NLRB performs legislative, executive, and judicial functions, violating the constitution’s separation of these three powers.
The NLRB’s expansion of make-whole remedies in Thryv has made it so that the NLRB is no longer engaged in the enforcement of public rights, but is instead engaged in “suits at common law,” which, under the 7th Amendment, must be heard by a jury.
These arguments are mostly copied from the recent Fifth Circuit decision SEC v. Jarkesy, which similarly found that the SEC ALJs are unconstitutional and that the SEC’s legal actions are “suits at common law” requiring a jury trial.
It is difficult to assess the soundness of these arguments because constitutional law, as a general matter, is essentially nonsense. Judges are just making it up in line with their political preferences and, more importantly, judges have no choice but to make it up in this way because the constitutional document is so hopelessly vague. If certain canons of constitutional interpretation were applied to the process of constitutional review itself, the constitutional document would have long been declared void for vagueness and the Supreme Court would have declared itself to be violating the nondelegation doctrine. But we nevertheless muddle through.
Aside from that general point, assessing specific arguments like these is difficult because you inevitably have to move between citing Supreme Court precedent in one sentence while ignoring or rejecting Supreme Court precedent in the next. If Supreme Court precedent tells us what the constitution means, then SpaceX is clearly wrong: the Supreme Court decided that the NLRB was constitutional in Jones & Laughlin Steel Corporation in 1937. Of course, SpaceX maintains that was wrongly decided.
But if the Supreme Court was wrong about that, then maybe it is also wrong in some of the cases SpaceX relies upon to build its case. For example, for its 7th Amendment argument, SpaceX heavily relies upon Supreme Court precedent stating that the phrase “suits at common law” does not literally mean what it says but instead also includes non-common-law suits that cover topics the common law also covers. Is it really the case that “suits at common law” also encompasses suits that are very literally not at common law, like NLRB adjudications? Is that how language works? Prior Supreme Courts seem to say so, at least in some circumstances. But maybe that’s incorrect?
Once you realize that the constitution itself is hopelessly vague and that most constitutional challenges rely upon citing favorable Supreme Court precedent as authoritative while arguing disfavorable Supreme Court precedent was wrongly decided (a combination that could be used to prove anything), argument assessment gives way to the more practical question of what do the nine lawmakers of the Supreme Court want to do?
At present, the Supreme Court is dominated by conservatives and conservatives are keen on the idea that administrative agencies are bad. But conservative judges also likely have some concern about the instability that would be caused by sweeping away entire agencies and the laws that they enforce. Even if they don’t particularly like the agencies or the laws in question, various economic structures have been built on top of them, and total sudden repeal (as opposed to the kind of careful reform a legislature is capable of) may cause a lot of damage.
So guessing at what the Supreme Court will do to these challenges depends mostly on figuring out how they will weigh out these countervailing preferences and concerns, something nobody can really predict.
Have you ever written about something that explicitly takes up, say, Marbury v. Madison, or Federalist 78? Something that considers judicial review at some length, without contemptuously dismissing it out of hand?
This is a very refreshing analysis. So much SCOTUS commentary ignores that we are in an era when a new judicial regime is being solidified. What is often presented as a series of ad hoc partisan decisions is more likely to be strategic in the sense that the consideration of harmonizing their judicial approach *so that it is likely to last because it makes sense over time* is very likely top of mind in this majority. The “senseless partisanship” frame and the “corruption” frame both ignore the institutional imperatives of a *judicial* institution.