On July 23 of this year, Judge Alan Albright (Republican, Western District of Texas) granted SpaceX’s request for a preliminary injunction (PI) against a run-of-the-mill unfair labor practice proceeding initiated by the National Labor Relations Board (NLRB) against the company.
Albright’s reasoning for granting the PI was that (1) Article II of the US constitution requires that the president “shall take Care that the Laws be faithfully executed,” (2) the president cannot do so with respect to the NLRB because the NLRB members and administrative law judges (ALJs) are too difficult to fire, and therefore (3) the NLRB’s structure is likely unconstitutional and it would cause irreparable harm to SpaceX to be subjected to the NLRB administrative process.
This analysis echoes similar analysis from the Fifth Circuit’s decision in Jarkesy, which held that the ALJs of the Securities and Exchange Commission (SEC) are also unconstitutionally difficult to fire. Jarkesy itself is based on the Supreme Court decisions in Seila Law LLC v. Consumer Financial Protection Bureau (unconstitutionally difficult to fire the head of the CFPB) and Collins v. Yellen (unconstitutionally difficult to fire the head of the Federal Housing Finance Agency).
On July 29 of this year, Judge Vincent Brown (Republican, Southern District of Texas) granted a PI request from a company called Energy Transfer. Brown’s reasoning is the same as the reasoning used by Judge Albright in the SpaceX decision.
On September 9 of this year, Judge Laurie Michelson (Democrat, Eastern District of Michigan) reached the opposite conclusion and denied a request for a PI from a company called YAPP.
Michelson’s reasoning was that (1) the Supreme Court ruled in 1935 that…
La suite est à lire sur: jacobin.com
Auteur: Matt Bruenig
