Supreme Court EPA Ruling A Warning Shot to Agencies like NLRB

The Supreme Court’s ruling in West Virginia v. Environmental Protection Agency that the EPA exceeded its authority under the Clean Air Act is a warning shot to other federal agencies concerning similar overreach. The National Labor Relations Board (NLRB) should take particular notice.

The NLRB, an independent federal agency that enforces the National Labor Relations Act, now has a Democratic majority and has indicated that it is planning to extend its authority under the Act in a variety of ways. These include “joint employer” status, so-called captive audience meetings, union access to employer property, union election rules, and collective bargaining in college athletics. These are all contentious issues that have been the recent focus of major legislation before Congress. The legislation died, which ought to a pretty clear sign that Congress could not reach agreement on these issues.

The driving force behind the effort to extend the NLRB’s regulatory scope has been NLRB General Counsel Jennifer Abruzzo, a Biden appointee and a former top union lawyer with the Communication Workers of America. The general counsel runs the agency on a day-to-day basis. Abruzzo has vowed to overhaul the agency by making boosting union organizing a focus.

For example, Abruzzo has requested that the board reinstate the so-called “Joy Silk” doctrine, an obscure rule scrapped by the board decades ago that, if revived, would effectively establish card check union recognition rules. These would eliminate secret ballots at most union elections. The fact that this same issue has been before Congress repeatedly as the Employee Free Choice Act and has never passed ought to be an obvious sign that the board lacks any such mandate.

The most recent major pro-union wish list legislation, the Protecting the Right to Organize Act, includes numerous provisions to aid union organizing but conspicuously lacks any provisions similar to EFCA. In other words, even card check’s congressional fans are no longer pushing for it. So why should the NLRB try to enact it on its own?

Progressives tend to invoke the argument that “congress is gridlocked therefore the agencies must act” to justify expansive federal rulemaking. But that gets it backwards. The executive branch should instead be redoubling its efforts to cut deals with Congress. Is it easy? No, but when has it ever been? The Biden administration, like the Obama administration before it, gives up at the first sign of resistance rather than trying to roll up its sleeves and negotiate deals by offering lawmakers on the other side something that they want.

President Obama served a single term in the Senate before reaching the White House and spent most of that working on his presidential bid, gaining little experience in deal-making. Biden, on the other hand, was a longtime U.S. senator. He was often involved in bipartisan deals back when Congress still reached them with the White House. He has no excuse for abandoning that approach now. The Supreme Court’s ruling in West Virginia v. EPA, if nothing else, is a reminder to the administration that cutting deals with Congress is still be way to get changes that stick around for the long run. Anything done by agencies can be undone; actual laws are much sturdier.