How Trump Could Disable the NLRB

January 7, 2025

By Jason Vazquez

Jason Vazquez is a staff attorney at the International Brotherhood of Teamsters. He graduated from Harvard Law School in 2023.

It is difficult to predict what a second Trump administration may augur for the broader political economy, yet at least one thing is almost certain: in the near future—perhaps sooner than anticipated—Donald Trump’s appointees will recapture control of the National Labor Relations Board. There is little doubt the corporate attorneys Trump is all but guaranteed to nominate to lead the agency will swiftly move to dismantle the Biden Board’s prounion legacy and, in the traditional Republican fashion, reformulate national labor policy in management’s favor. As corporate interests begin to signal an appetite for more fundamental assaults on the Board’s regulatory capacity, however, the specter that that the incoming administration may pursue more novel and radical antiregulatory measures looms. These may include, as some have speculated, outright refusing to appoint members to the NLRB. Such a move would hamstring labor law enforcement and be extraordinarily tricky to challenge in court. Still, all things considered, it is not clear it would ultimately inure to management’s benefit.

As an initial matter, legally contesting a President’s failure to name NLRB replacements would likely prove all but impossible. The NRLA empowers the President to make appointments to the Board but nowhere compels him to do so. Indeed, President Biden has somewhat controversially left a seat conventionally occupied by a Republican vacant for nearly two years. Nor would the Administrative Procedure Act, the transsubstantive statute governing federal agencies’ adjudicatory and regulatory activities, offer relief. True, the APA authorizes judicial review of the executive branch’s “failure to act.” But it is exceedingly difficult to challenge inaction under the statute; while cautioning that an agency may not completely “abdicat[e] statutory responsibilities,” the Supreme Court has made clear that the APA does not empower the judiciary to “enter general orders compelling compliance with broad statutory mandates.” (And again, the President is not even statutorily mandated to nominate Board members.) Moreover, the Court has announced categorically that the APA does not contemplate judicial review of presidential action.

The President’s conduct remains subject to constitutional constraints even in the absence of statutory remedies. Yet there is no realistic avenue to challenge a failure to nominate on constitutional grounds. Even tabling thorny questions concerning standing, the Appointment Clause confers virtually unbridled discretion on the President with respect to nominating executive officers. And while disabling an agency from carrying out its statutory charge may contravene the President’s constitutional obligation to faithfully execute the laws, not all constitutional transgressions are necessarily justiciable or redressable. Here, Congress has not ordained a cause of action to enforce the Take Care Clause, and the Supreme Court has declared that vindicating “the public interest in Government observance of the Constitution and laws” does not constitute an independent basis for litigation.

In short, there is little question Trump could disable the NLRB if he were so inclined. Doing so would likely preclude enforcement of federal labor law. The Supreme Court has held that absent a lawfully appointed quorum—at least three members under Section 3(b)—the NLRB may not exercise its powers. And since Congress vested the Board with exclusive jurisdiction to administer the NLRA, courts are largely deprived of authority to adjudicate violations of the Act. Consequently, if the NLRB were disabled, no legal mechanism would exist to prevent or redress unfair labor practices. Put differently, the President could effectively nullify the NLRA—and all the rights and obligations it creates—without any legislative action, or even so much as a notice-and-comment proceeding.

FULL story : https://onlabor.org/how-trump-could-disable-the-nlrb/