ACLU said NLRB’s general counsel Abruzzo ‘lacks authority’

Here’s some news that slipped through the cracks last year: The American Civil Liberties Union (ACLU) challenged the legitimacy of Jennifer Abruzzo’s appointment as general counsel for the National Labor Relations Board (NLRB). If that weren’t eye-brow raising enough, the ACLU echoed an argument made previously by the Competitive Enterprise Institute.

The ACLU, the nation’s most famous civil rights organization, challenged Abruzzo’s standing in a March 27, 2023 legal filing. The ACLU was responding to an unfair practices complaint filed by the NLRB and initiated by two unions seeking to represent the civil liberty group’s staffers (a collective bargaining contract has not been reached). The unions involved were the Nonprofit Professional Employees Union (NPEU) and the International Federation of Professional and Technical Engineers (IFPTE). It seems, like some other ostensibly progressive organizations, the ACLU doesn’t always get along easily with its workers’ representatives.

In addition to refuting the claims made by the unions, the ACLU added this: “The complaint must be dismissed because the General Counsel lacked the authority to prosecute the Complaint in that the president could not remove the predecessor General Counsel without cause during the four-year term to which he was appointed.”

In layman’s terms, the ACLU appeared to be arguing that Abruzzo’s appointment NLRB general counsel was unconstitutional and therefore nothing she does in that role is legally enforceable. CEI made the same argument when Abruzzo’s predecessor, Peter Robb, was fired. The ACLU’s attorney in the matter had not, at the time of posting, responded to a request for comment by CEI. (Editor’s note: The ACLU says it subsequently dropped the argument regarding Abruzzo’s appointment. See the update at the end of the story for further information.)

The NLRB’s general counsel position is not, as the title might imply, just a lawyer for the agency, but its head. The agency is overseen by a five-member board, but the general counsel manages the agency’s day-to-day activities and can initiate enforcement activities on their own. The general counsel sits atop the board’s organizational chart, equal to the board itself.

“The general counselor is the chief administrative officer of the agency,” Richard Griffin, the then-general counsel for the NLRB said in a 2014 speech to West Virginia University Law School. “There are approximately 1,610 people who work for the National Labor Relations Board and 1,540 of them report directly to me.” (The size of the agency has since shrunk to about 1,300 employees.)

This matters because, under the Administrative Procedures Act, independent federal agencies are supposed to be, well, independent of the White House. The executive branch nominates people to fill the posts, but once appointed they are supposed to serve out their term and not be subject to the White House’s demands.

In a 2001 Harvard Law Review article, Elena Kagan—then a law professor, now a Supreme Court Justice!—repeatedly defined entities like the NLRB as “agencies whose heads the President may not remove at will.” Kagan noted, “Accepted constitutional doctrine holds that Congress possesses broad, although not unlimited, power to structure the relationship between the President and the administration, even to the extent of creating independent agencies, whose heads have substantial protection from presidential removal.”

The Biden administration nevertheless demanded Robb’s resignation. Robb protested but ultimately complied with the request. The situation attracted little attention at the time, perhaps in part because of the simple fact that the NLRB is run by a “general counsel.” The title confuses the issue since many people would assume a counsel is merely an attorney for the agency, not its head. Griffin, who served as a controversial recess appointment to the NLRB board prior to being confirmed by the Senate as general counsel, joked in the 2014 speech that the senators apparently didn’t realize they were giving him more power.

Congress should clarify the issue by amending the National Labor Relations Act to rename the general counsel as chief administrative officer. A simple cosmetic change like that shouldn’t be controversial. Exactly how the ACLU came to pick up this argument regarding the general counsel is unclear. It’s possible they noticed CEI’s research, or maybe they reached the same conclusion independently. The case is ongoing, the NLRB having recently rejected the ACLU’s appeal of an administrative law judge’s ruling. The ACLU may yet appeal to an outside court.

UPDATE: Shortly after this piece was posted, Lauren Weiner of the ACLU told CEI in an email that “the ACLU determined that the issue regarding General Counsel Abruzzo was a technical, procedural issue that the ACLU withdrew from the case on September 14, 2023.” Weiner states that it “is not our argument and not our point of view” that Abruzzo’s appointment was unconstitutional. I overlooked that the ACLU “withdrew” this argument, largely because they did so invisibly by declining to repeat the claim in successive NLRB case filings. So it appears we won’t see the ACLU make the case against Abruzzo should the organization appeal the case to an outside court.