Amazon: Is the NLRB Unconstitutional?

In the headlines is something that might sound vaguely familiar to anyone who has been paying attention to upcoming Supreme Court rulings: union target Amazon has decided to challenge the constitutionality of the National Labor Relations Board:

The Amazon filing, made Thursday, came in response to a case before an administrative law judge overseeing a complaint from agency prosecutors who allege the company unlawfully retaliated against workers at a New York City warehouse who voted to unionize nearly two years ago.

In its filing, Amazon denies many of the charges and asks for the complaint to be dismissed. The company's attorneys then go further, arguing that the structure of the agency -- particularly limits on the removal of administrative law judges and five board members appointed by the president -- violates the separation of powers and infringes on executive powers stipulated in the Constitution. [bold added]

Setting aside the propriety of the government's wholesale violation of right to contract -- inherent in any law restricting how employers and employees bargain with one another -- the complaint about the NLRB is interesting and familiar-sounding.

A piece in the Federalist shows why on both counts:

"When I use a word it means just what I choose it to mean — neither more nor less." -- Humpty Dumpty (Image by John Tenniel, ">via Wikimedia Commons, public domain.)

A successful challenge wouldn't necessarily abolish the Board. Courts could fix the independent-agency-judges problem by striking down the judges' removal protections. That's exactly what the Supreme Court did in a 2020 case involving the CFPB [i.e., the Consumer Financial Protection Board]. Similarly, courts could fix the judicial-power problem by reviewing the Board's decisions more closely. The Board's flaw is that it has no check: it can flip positions at will without worrying that it will be second-guessed in court. But if courts stopped deferring to its supposed expertise, that problem could go away. The Board could continue processing labor disputes at an administrative level, and people could still get their day in court.

Fortunately, courts seem to be moving in that direction. The Supreme Court recently agreed to hear Loper Bright Enterprises v. Raimondo, a case about when (or whether) courts should defer to agencies. Most observers think the Court will use the case to tighten the standards for judicial review. If it does, the decision could help rein the Board in. The Board would have to defend its decisions in court with little or no deference. And that fact alone might help moderate its political excesses. [bold added, links removed]

So, yes: This case sounds familiar for a reason, because the Court heard a similar case recently and it could be poised to rein in agencies on the grounds that a doctrine called "Chevron deference" usurps the role of the judicial branch to interpret the meaning of the law.

Most interesting to me is the chance to fix an institutionalized instance of what Ayn Rand called "non-objective law:"

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it. [bold added]

The "flipping" of board decisions, depending on which party is in power is a great example. According to the Federalist, the NLRB "reversed a group of decisions that had been on the books for more than a collective 4,500 years" once Barack Obama became President.

How on earth can anyone run a business with that degree of unpredictability? But if that question sounds a little too abstract, consider that the NLRB under the Biden Administration was (is?) toying with the idea of a regulatory change that would upend the venerable franchise model of running a business.

What? Companies have been doing that for decades! you might say. That's exactly the problem with non-objective law, and I hope the Supreme Court rules with Amazon on this one.

-- CAV