The most likely outcome of the current constitutional challenge to the National Labor Relations Board is not that the Supreme Court will destroy the agency — it’s that the board will be unable to operate in many states while the litigation is proceeding.
A hearing room at the headquarters of the National Labor Relations Board in Washington, DC, on September 30, 2019. (Andrew Harrer / Bloomberg via Getty Images)
Last week, a federal district court in Texas preliminarily enjoined the National Labor Relations Board (NLRB) from initiating an administrative proceeding against SpaceX on the grounds that removal protections for the agency’s administrative law judges (ALJs) and five board members are unconstitutional. Put simply, the agency’s current structure is unconstitutional because it contains rules that make it too difficult for the president to fire the ALJs and board members.
As with most constitutional law, the underlying legal question here turns upon impossibly vague text. Specifically, the question is whether the Article II requirement that the president “shall take Care that the Laws be faithfully executed” means that the president must retain the power to fire, at will, certain kinds of administrative agency officials. The idea that this bit of constitutional text provides a clear answer to a question as precise as the one being raised is obviously absurd, and so the resolution of the case will depend on the political views of the judges, including their opinions on the unitary executive theory, judicial restraint, and the utility of federal labor law.
There are basically three possible outcomes to the eventual Supreme Court decision in this case, each with different practical implications.
The first possible outcome is that the Supreme Court, citing Humphrey’s Executor v. United States, decides that the removal protections for NLRB ALJs and board members are not unconstitutional and that the agency can continue operating just as it always has.
The second possible outcome is that the Supreme Court, citing Seila Law v. Consumer Financial Protection Bureau and Collins v. Yellen, decides that the removal protections for these two groups are unconstitutional but that this can be remedied by simply cutting those protections out of the statute and allowing the president to fire NLRB ALJs and board members at will.
The final possible outcome is the same as the second outcome except that the Supreme Court decides that it cannot simply cut these protections out of the statute and that instead the whole agency must be tossed out until such time as Congress can enact a new statute recreating the agency in a constitutional way.
Given how hard it is to pass legislation, the last outcome would obviously be the most challenging to organized labor. It would also generate a lot of confusing legal issues around what to do about the pieces of our economy that are currently organized under the National Labor Relations Act (NLRA) regime in the meantime.
But the last outcome is pretty unlikely. In Seila Law and Collins v. Yellen, the Supreme Court held that the removal protections for the heads of the Consumer Financial Protection Bureau and Federal Housing Finance Agency were unconstitutional, but it did not strike down the entire agencies. It just made it so that, contrary to what the statute said, the president could fire those heads. This is what would probably happen with the NLRB as well.
Does it really matter whether the president can fire NLRB ALJs and board members? For the most part, it probably doesn’t. The president can already fire the NLRB general counsel, something Biden did on day one of his administration, and the president already appoints NLRB members in a way to ensure that they are mostly Republican or mostly Democratic, depending on the party that controls the White House. This currently comes at some delay because the president has to wait for the end of each board member’s term, but it happens fairly quickly after a new president is sworn in.
Being able to fire ALJs would be fairly new, but would presidents even do this and why exactly? ALJs apply board law and, if they don’t, their decisions end up reversed by the board. Like any judge, ALJs have some ability to affect outcomes in the way that they decide to construe ambiguous or conflicting evidence. But the number of cases that are likely to result in different outcomes due to there being a different slate of ALJs seems pretty low.
And this is only for cases that actually make it to ALJs. The vast majority of NLRB cases — more than 90 percent — settle. Those cases would be unaffected.
What is actually annoying about this litigation is not that it is likely to result in some kind of catastrophic Supreme Court outcome. It’s that, while we wait, potentially for years, for the litigation to work its way through the process, the NLRB will be unable to operate in any state covered by a federal circuit court that follows what the Fifth Circuit has done. Efforts to process cases in those areas will be met with preliminary injunctions from federal district courts that halt the agency from acting until the final outcome of this case. For all intents and purposes, these workers and unions operating in these areas will have no protections during this period.
One possible way to speed up this process might be to have Congress preemptively pass a bill that strips away the removal protections for NLRB ALJs and board members. If I am right and these removal protections don’t really matter that much anyway, then a simple amendment to the NLRA would ensure that the NLRB can continue to operate rather than being frozen until these cases make their way to the Supreme Court.
Of course, this kind of legislative amendment would require bipartisan support given the current composition of Congress. And precisely because not making the fix will cripple the agency in certain parts of the country for a certain period of time, even legislators who ostensibly agree with these legal theories about why these removal protections are unconstitutional may not want to make these changes.