For the last year or so, federal district court judges in the Fifth Circuit have been enjoining the National Labor Relations Board (NLRB) from processing unfair labor practice charges against employers in Texas, Louisiana, and Mississippi. I’ve written a couple of pieces about this including this one in September of last year.
These decisions are all downstream of the “unitary executive” theory popular in conservative legal circles. The legal argument goes as follows:
- Article II of the US Constitution requires that the president “shall take Care that the Laws be faithfully executed.”
- The president cannot do so with respect to the NLRB because the NLRB members and administrative law judges (ALJs) are too difficult to fire.
- Thus, the NLRB’s current structure is likely unconstitutional and it would cause irreparable harm to these employers to be subject to NLRB administrative processes.
Three of these district court cases were consolidated into an appeal that recently went before the Fifth Circuit. Unsurprisingly, the Fifth Circuit, which is dominated by conservatives, endorsed this particular legal theory and upheld the district court decisions enjoining the NLRB from processing unfair labor practice charges against the involved employers.
At this point, the practical significance of this ruling is essentially zero. It is already clear that the Supreme Court is going to decide on the relevant legal issue in the near future, whether upon appeal of this Fifth Circuit decision or upon the appeal of Wilcox v. Trump, which is currently making its way through the DC Circuit. The Supreme Court has strongly signaled that once it has a chance to do so, it will rule that the removal protections for NLRB ALJs and NLRB members are…
Auteur: Matt Bruenig
