In the early 1970s, a graffito circulated among the public toilet stalls of California that admonished: “If you voted for Nixon you can’t shit here because your asshole’s in Washington.” I feel the same way about Donald Trump, even though he isn’t president at the moment (and, God willing, never will be again). That’s because Trump’s noisome influence lingers within the federal judiciary as it busily sets about repealing what’s left of the New Deal.
The latest example is a preliminary injunction, issued Monday by a federal judge in Fort Worth, Texas, that effectively endorses a reactionary campaign led by Elon Musk to dismantle the National Labor Relations Board, the federal agency that enforces laws to protect labor organizing. Amazon, Trader Joe’s, and Starbucks have joined the parade, filing similar lawsuits. As the sprite Ariel famously observes in Shakespeare’s The Tempest: Hell is empty and all the devils are here.
The judge who issued this week’s sulfuric injunction, Mark T. Pittman, was elevated to the bench by Trump in 2019. The plaintiff here is not Musk but Findhelp, an Austin-based company that makes software for employers of home health care workers. According to the Office and Professional Employees International Union, which organized Findhelp tech workers last year, Findhelp committed various unfair labor practices in connection with negotiating a union contract. The NLRB’s general counsel, finding merit in the OPEIU’s complaints, scheduled a hearing September 23 before an NLRB administrative law judge. But before this hearing could take place, Findhelp filed suit to prevent it. This week, Pittman’s injunction did so, on the grounds that the NLRB’s reliance on administrative law judges violates the Constitution.
Note that Pittman’s injunction does not block any particular action by the NLRB, which never had time to hear the case. The ruling is simply against the NLRB’s 89-year existence.
Pittman’s injunction followed two similar injunctions blocking NLRB investigations, both in July. The first injunction was issued in Waco by Judge Alan Albright, whom Trump elevated to the bench in 2018. Albright’s injunction shielded Musk’s SpaceX from an NLRB administrative law judge’s inquiry into Musk’s quite obviously illegal firing of eight engineers for circulating a letter (to read it, click here and scroll down) that accused Musk of maintaining a sexist culture at the firm. The only difference was that when Albright ruled, an administrative law hearing had already taken place.
The second injunction was issued a mere six days after Albright’s. Judge Jeffrey Brown, a district court judge in Galveston, whom Trump elevated to the bench in 2019, blocked the NLRB from holding an administrative law hearing on an alleged unfair labor practice (retaliation against an employee engaging in protected labor activity) by Energy Transfer, a natural gas pipeline firm. As in the Findhelp ruling, Brown’s injunction prevented the NLRB hearing (scheduled for October 29) from taking place.
All three cases cited SEC v. Jarkesy, which the Supreme Court decided a mere month before the first two injunctions. The decision concerned one George Jarkesy, a hedge fund manager whom the Securities and Exchange Commission nailed for securities fraud. An SEC administrative law judge fined Jarkesy $300,000, required him to relinquish $685,000 in ill-gotten gains, and booted this scofflaw out of the securities industry.
The Supreme Court voided the SEC ruling on the grounds that Jarkesy was denied his right to a jury trial. But even if you accept the high court’s reasoning (which I don’t), it isn’t obvious why Jarksey should apply to NLRB proceedings. Jarkesy said an administrative law judge may not impose a civil fine or exile somebody from his profession. But the NLRB can do neither. The only remedy it can impose on employers is reinstatement of a fired worker with back pay, or posting certain notices at work, or recognizing a labor union, or good-faith bargaining toward a union contract. Civil fines are explicitly prohibited. They shouldn’t be (and under the Protecting the Right to Organize Act they wouldn’t be). But they are. And I’ve never heard of the NLRB even trying to shut anybody’s business down. Why would it? The people who petition the agency either work at the offending business or wish to return there.
All this explains why Judge Laurie Michelson, a federal judge in Michigan, earlier this month denied a preliminary injunction request against the NLRB brought on grounds similar to those in these other cases—without even mentioning Jarkesy. Instead she cited a Supreme Court decision from 1935, Humphrey’s Executor v. U.S., that barred President Franklin Roosevelt from removing William Humphrey, an appointee of his Republican predecessor, Herbert Hoover, from the Federal Trade Commission. Four months after FDR fired Humphrey, the deposed commissioner very obligingly had a stroke and died. But before Humphrey departed this vale of tears he filed suit to regain his job. His heirs kept the case going and recovered his back pay.
The antiregulatory right would have you believe that administrative law judges are some novel regulatory apparatus, but the NLRB has had them since the 1930s, when they were called “trial examiners.” They’ve enjoyed civil service protection since 1940. Only the term “administrative law judges” is (somewhat) new; according to Andrew Strom, an associate general counsel at the SEIU, it dates to the 1970s.
I would gladly go back to calling administrative law judges “trial examiners” if I thought it would appease reactionary warriors against the administrative state (who themselves have been around since the late 1940s but were never taken seriously much before now). But of course, this crowd won’t rest until there are no regulatory agencies left. Donald Trump’s got their back, and even if he loses in November his Supreme Court majority does too. That can only start to change if Kamala Harris is elected president. If you want American businesses to romp free of supervision, all in the name of “populism,” then Trump’s your guy. Otherwise, please vote Democratic.
