What Will it Take to Sound the Alarm About Trump Judges?

https://onlabor.org/what-will-it-take-to-sound-the-alarm-about-trump-judges/

August 8, 2024

By Andrew Strom

Andrew Strom is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY.

In recent weeks, two different Trump-appointed federal judges have issued injunctions to stop the National Labor Relations Board (NLRB) from conducting routine hearings against employers based on the absurd claim that the 90 year-old National Labor Relations Act (NLRA) is unconstitutional. This is a five-alarm fire and yet these outrageous power grabs have largely been met with a collective shrug.

Since Congress first passed the NLRA, cases alleging violations of the Act have been adjudicated the same way: one of the Board’s regional offices investigates a charge, and if the Regional Director determines that the charge has merit, the case is set for hearing before a civil servant. Since 1972 these hearing officers have been referred to as Administrative Law Judges (ALJs). Any decision issued by an ALJ may be appealed to the five Board Members, who are appointed by the President in staggered terms. Each year the NLRB holds hundreds of hearings before ALJs, and issues hundreds of decisions finding that employers or unions committed unfair labor practices. The Supreme Court has ruled on hundreds of cases involving the NLRB, and the Courts of Appeals have ruled on thousands. Yet, now, as Justice Kagan might say, “some geniuses” have decided that the entire NLRA is unconstitutional. To be precise, these “geniuses” are two Trump-appointed district court judges in Texas, a state covered by the notorious Fifth Circuit Court of Appeals.

The Texas twosome are Alan Albright and Jeffrey Vincent Brown, and their theory for why the NLRA is unconstitutional is that the ALJs who oversee hearings are improperly insulated from removal by the President. On July 23rd and July 29th, Albright and Brown issued rulings enjoining the NLRB from holding unfair labor practice proceedings against two different employers – SpaceX and Energy Transfer, a natural gas pipeline operator. The lead lawyer for SpaceX is Harry Johnson, who served as a Member of the NLRB for two years, and apparently never realized during that time that he was acting in a lawless manner. SpaceX and Energy Transfer have argued that the structure of the NLRB is unconstitutional because ALJs are officers in the Executive branch, and Article II of the Constitution requires that all executive officers must be subject to removal by the President.

So, in other words, Elon Musk is arguing that his company will be injured if it is subject to an adjudicatory hearing before an official who cannot be summarily fired by President Biden. How does SpaceX even have standing to make this argument? Is there any evidence that President Biden wants to fire any of the Board’s ALJs? And, isn’t the standard complaint from the business lobby that the NLRB is too political? The same firm that represents Energy Transfer made this exact argument in asking the Supreme Court to overrule Chevron. There it argued that the Board “continuously realign[s] federal labor law with its vacillating political views.”

FULL story at link above.