The flaw in Justice Kagan’s defense of the NLRB

Justice Elana Kagan authored a lengthy dissent to the Supreme Court’s decision on Thursday granting the Trump administration’s request to keep the Gwynne Wilcox, the former chairwoman of the National Labor Relations Board (NLRB), off the board. Kagan’s dissent defends the NLRB by repeatedly stating that it is “bipartisan.” The problem with her argument is that the law that created the board, the National Labor Relations Act (NLRA), doesn’t require it to be bipartisan. That is, its bipartisanship is a tradition, not a rule. And traditions can change.

This seemingly minor, pedantic point is significant because it may determine whether President Donald Trump can fire members of the NLRB, a quasi-independent federal agency that oversees private sector unions. Once a little-known agency, the NLRB has in recent years become one of the main battlegrounds for labor policy. Control of the board can swing policy drastically following presidential elections. Thursday’s action threw the ball back to the lower courts, but the case is expected to come back before the Supreme Court eventually.

Wilcox was President Joe Biden’s choice to chair the board and is widely seen as a union ally. Her firing was an unprecedented move by President Trump. The NLRA says that the president may remove board members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The White House argued that that NLRA provision was itself unconstitutional since it limited the president’s ability to control executive branch agencies.

At issue is whether the NLRB is an executive branch agency or an independent agency that can act autonomously. The Supreme Court’s Thursday decision – technically a stay of a lower court ruling – stated “our judgment  [is] that the Government is likely to show that both the NLRB and MSPB exercise considerable executive power.” MSPB refers to the Merits Systems Protection Board, another federal agency where a member’s dismissal by Trump is being contested.

Kagan’s dissent, joined by Justices Ketanji Brown Jackson and Sonia Sotomayor, appears to be premised in part on the idea that the NLRB’s bipartisanship weighs against the executive branch’s authority because that proves that Congress meant it to be independent. Such bipartisan splits are often cited as a benefit of independent agencies, because they provide an internal check that moderates their actions as well as proof that Congress intended them to be independent.

Kagan begins by pointing to the court’s 1935 ruling in Humphrey’s Executor, which limited the president’s power over federal agencies created by Congress. Kagan states that “Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.” She identifies the NLRB as “a classic independent agency—a multi-member, bipartisan commission exercising regulatory power” and says that such agencies are “multi-member bodies of experts, balanced along partisan lines, with ‘quasi-legislative or quasi-judicial’ (not ‘purely executive’) functions” (emphases added).

The flaw in Kagan’s argument is that nothing in the text of the NLRA requires any partisan balancing of NLRB members or otherwise says which political party gets any open seats. The law merely says, “the Board shall consist of five instead of three members, appointed by the President by and with the advice and consent of the Senate.”

It is true that there has been a 3-2 partisan split on the NLRB since the 1950s, excepting for a few periods when one or more seats stood vacant due to difficulties getting members confirmed by the Senate. That partisan split is merely a tradition, one accepted by various presidential administrations as a means to ease Senate confirmation of NLRB appointees. Nothing prevents the president from only nominating members of one party to serve on the board, though they would probably have a harder time getting Senate confirmation.

It is possible that Kagan was merely invoking the NLRB’s tradition of bipartisanship in her dissent, not stating that the agency is required by law to be that way. However, she never makes this distinction. She should have though because a tradition does not have the weight of a legal requirement.

The bottom line is that the NLRB has always been a politicized agency and Trump’s firing of Wilcox was merely him pulling the pin on pushing it even further in that direction. Republicans may eventually come to regret this. Should Trump’s firing of Wilcox be upheld, as a Supreme Court majority appears inclined to do, that will create a precedent that will allow prospective future Democratic administrations to fire any Republican appointees and try to make the board all-Democratic.