National Review Online
Wednesday, September 18, 2024
In Securities and Exchange Commission v. Jarkesy earlier
this year, the Supreme Court ruled that the constitutional guarantee of the right to
trial by jury still counts in administrative cases. Earlier in that case, the
Fifth Circuit Court of Appeals also ruled that the way in which SEC
administrative-law judges (ALJs) are appointed and protected from removal
violates Article II of the Constitution, which vests executive power in the
president.
The SEC is hardly the only federal agency with a similar
structure. The National Labor Relations Board is another one. It, too, can
initiate enforcement actions internally that deny defendants a trial by jury
and instead put them before an ALJ who works for the agency.
Mark Pittman is a district-court judge for the Northern
District of Texas, which appeals to the Fifth Circuit. He granted a preliminary
injunction to halt an NLRB case for the exact same reasons the SEC’s process
was ruled unconstitutional by the Fifth Circuit in Jarkesy. In doing so,
he was straightforwardly upholding precedent.
Yet he has been denounced as a “Trump judge” who is
working to help evil, greedy corporations stomp on workers’ rights.
First, let’s look at Pittman’s decision. The company Findhelp was accused of violating
labor law by its employees’ union, the Office and Professional Employees
International Union. The NLRB began its internal ALJ process that resembles the
SEC process that the Fifth Circuit ruled unconstitutional. So Findhelp
requested a preliminary injunction to stop the proceedings.
“In this case, the NLRB ALJs are afforded the same two
layers of for-cause removal protections that the Fifth Circuit found to be
unconstitutional with regard to the SEC ALJs,” Pittman wrote. “In fact, the
NLRB has not, and cannot, offer any distinction between the relevant provisions
or the protections they confer upon the ALJs.”
The NLRB believes Jarkesy was wrongly decided. But
Pittman is a district-court judge, bound by Fifth Circuit precedent. If it was
unconstitutional for the SEC to have in-house courts with judges protected from
removal, it is also unconstitutional for the NLRB to do the same thing.
That’s the meat of the decision. There are also legal
technicalities about when preliminary injunctions are allowed, each of which
Pittman explained were cleared in this case. Being subject to an
unconstitutional process is an irreparable injury, and because the government
is the opposing party, it is in the public interest to stop it.
But of course, progressives don’t believe the law is
about the law. They believe it is about getting the results they want. The
result they want is a powerful NLRB, and Pittman just undermined it.
They see the NLRB as a defender of workers, even though
94 percent of American workers don’t have much interest in the cases the NLRB
hears. That’s because only 6 percent of American workers are members of
private-sector unions. Though the provisions of the National Labor Relations
Act apply to most private-sector workers, the cases the NLRB adjudicates are
mostly between unions and private employers (public-sector labor relations are
under a different agency).
Democrats’ vision for the agency is that every case is an
auto-win for unions. Workers want a secret-ballot election? Too bad; unions can gain exclusive bargaining rights
through card check. Workers actually voted against a union? That can’t be right; the NLRB will demand a do-over.
Employers think they have free-speech rights? Wrong; the NLRB will prevent them from sharing their views on unionization and
even punish them for jokes on social media.
For actual unfair labor practices, there’s a wonderful
thing called a federal court, with rules of evidence, a presumption of
innocence, and the right to a trial by jury. It is slower than the NLRB and
less biased against employers — and that’s why it’s better.
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