4 ms·

Most of the complaints about the NLRB and other agencies are bunk. However, the quasi-judicial bodies inside administrative agencies are legitimately worrisome.

Most of the complaints about the NLRB and other agencies are bunk. However, the quasi-judicial bodies inside administrative agencies are legitimately worrisome. Making substantive policy is fine as long as Congress has given them an intelligible principle to guide them - which they have: the NLRA. The NLRB is not immune to democratic control; the General Counsel of the NLRB is removable at will by the President and Congress can override any rule or precedent. However, it is legitimately a problem that the NLRB and other agencies have their own internal court where you have no right to a jury trial, the rules of evidence are stacked against you, and the ultimate decision is heavily dependent on the partisan makeup of the current Board (Democratic boards routinely overturn precedent established under Republican boards and vice versa). There is a case at the Supreme Court this term that may begin to remedy that.

avs733 3y ago
I would call it a concern rather than a problem. It'll be interesting, and likely frustrating, to see what what the Supreme Court does but it is worth noting some potential upsides - for both parties to a case- of this system. The reasoning for the internal administrative courts is because these (SEC, NLRA, etc.) are highly esoteric and detailed areas of the law. Having people be judges in these cases who are experts can be a positive so they don't get BS'ed and can resolve issues efficiently and effectively and consistently. That is very different from the experience of dealing with federal courts at large where a judge may be hearing a murder trial one day and a shareholder lawsuit the next. Those courts ALREADY have huge backlogs so adding this case load to them is likely to be disastrous as well as resulting in more manifestly unfair outcomes when one side is able to delay to the point where remedies aren't meaningful. The argument that they are political (your overturning) also applies pretty damn well to EVERY court these days, not just internal administrative ones. I think a useful analogy is to how frustrated much of HN gets every time federal judges struggle to grok technology - whether it be the internet, software code, or privacy. Imagine if there was some sort of court dedicated to dealing with 'technology stuff' where the judges had a background in the relevant areas to make sure reality won the day. There is a place for generalists and a place for specialists. Maybe this isn't the best way to handle it but it is a way.
- granzymes 3y ago
  We already have Article III judges who specialize (bankruptcy judges, the Federal Circuit) so I don’t see why we can’t pull the ALJs out of the agencies and make them into specialized tribunals with direct appeal to the appellate courts. Having dedicated judges who are knowledgeable about their subject matter doesn’t mean we need to let the agencies put their thumb on the scale. That neatly solves every issue.
  - avs733 3y ago
    We could - we haven't. We probably should - we haven't. Its also worth noting that these decisions by administrative judges are already reviewable by appellate courts. There are over 1900 administrative law judges. There are around 900 TOTAL Article III juges, including appellate courts. Finally, I'll note that (my opinion) whether people think this is a good idea should be held independent of the fact that most of these arguments are being raised in bad faith by people with more power to avoid the legal process not so they can meaningfully avail themselves of it.
    - granzymes 3y ago
      The overwhelming majority of ALJs are in the Social Security Administration dealing with claim disputes. I don’t think anyone has a problem with that, and we can leave them alone. The NLRB, SEC, FTC. These cases belong in a real Article III court. Once we solve this issue, people can’t raise it in bad faith anymore to weasel out of consequences. Every litigant wants to win, and I agree that they are raising these issues to attack proceedings that they might lose on the merits. I believe it was Justice Kagan who said last term that there are a finite number of Constitutional issues with agency structure. Let’s just fix them all now.
      - avs733 3y ago
        >I don’t think anyone has a problem with that, and we can leave them alone. The NLRB, SEC, FTC. These cases belong in a real Article III court. So in other words, its a judgement question which should be left up to the legislature? What is the constitutional basis for that differentiation? The only difference I can see is a comfort subjecting individuals to this process and a discomfort subjecting corporations to it.
solardev 3y ago
I'd rather have these things handled by more democratic, if partisan, groups than an unelected, unaccountable, supreme court. If anything needs to go it's that court's makeup and structure. What an insult to democracy. There is nothing magical or sacred about the Supreme Court, especially these days. They're just political puppets.
- granzymes 3y ago
  You can’t have the rule of law without an independent judiciary. For me, I would rather have a jury of my peers and the protections of the Federal Rules of Evidence than go before a kangaroo agency court where my prosecutor was chosen by the same people who will ultimately decide my case (and in some agencies they also chose to bring the case in the first place; talk about prejudging the issue).
  - solardev 3y ago
    I'm all for specialized courts following the rule of law, and juries of your peers. The supreme court is not independent. They are politically appointed, politically not appointed, accountable to no citizen, and very much a kangaroo court. At this point they're just party line puppets, empowering their benefactors with no actual regard to any philosophy like originalism or precedence. It'd be funny if it wasn't so sad how brazenly corrupt they are. That whole thing needs a redo.
    - granzymes 3y ago
      I wish you luck in reforming the Supreme Court. I just don’t think it has anything to do with the much more tractable issue of administrative courts.
tomohawk 3y ago
Not to mention that the current president took the unprecedented step of replacing the entire NLRB instead of just replacing members whose terms expired. That's a good way to get short term wins, but also guarantee more rancor and and even bigger push back later. While the constitution gives congress the authority to establish courts, these courts are all supposed to be in the judiciary. It boggles the mind that it would be contitutional for congress to delegate another branch's authority (the judicial branch's) to the executive branch.
averysmallbird 3y ago
NLRB decisions in unfair labor practice cases can be appealed to a US Court of Appeals?
- granzymes 3y ago
  Yes, but under a very deferential standard of review that makes it essentially impossible to contest any factual findings the ALJ or Board made. That’s a problem when the Board gets to decide the rules of evidence and stacks the deck in its favor.

avs733 3y ago

I would call it a concern rather than a problem. It'll be interesting, and likely frustrating, to see what what the Supreme Court does but it is worth noting some potential upsides - for both parties to a case- of this system. The reasoning for the internal administrative courts is because these (SEC, NLRA, etc.) are highly esoteric and detailed areas of the law. Having people be judges in these cases who are experts can be a positive so they don't get BS'ed and can resolve issues efficiently and effectively and consistently. That is very different from the experience of dealing with federal courts at large where a judge may be hearing a murder trial one day and a shareholder lawsuit the next. Those courts ALREADY have huge backlogs so adding this case load to them is likely to be disastrous as well as resulting in more manifestly unfair outcomes when one side is able to delay to the point where remedies aren't meaningful. The argument that they are political (your overturning) also applies pretty damn well to EVERY court these days, not just internal administrative ones. I think a useful analogy is to how frustrated much of HN gets every time federal judges struggle to grok technology - whether it be the internet, software code, or privacy. Imagine if there was some sort of court dedicated to dealing with 'technology stuff' where the judges had a background in the relevant areas to make sure reality won the day. There is a place for generalists and a place for specialists. Maybe this isn't the best way to handle it but it is a way.

granzymes 3y ago
We already have Article III judges who specialize (bankruptcy judges, the Federal Circuit) so I don’t see why we can’t pull the ALJs out of the agencies and make them into specialized tribunals with direct appeal to the appellate courts. Having dedicated judges who are knowledgeable about their subject matter doesn’t mean we need to let the agencies put their thumb on the scale. That neatly solves every issue.
- avs733 3y ago
  We could - we haven't. We probably should - we haven't. Its also worth noting that these decisions by administrative judges are already reviewable by appellate courts. There are over 1900 administrative law judges. There are around 900 TOTAL Article III juges, including appellate courts. Finally, I'll note that (my opinion) whether people think this is a good idea should be held independent of the fact that most of these arguments are being raised in bad faith by people with more power to avoid the legal process not so they can meaningfully avail themselves of it.
  - granzymes 3y ago
    The overwhelming majority of ALJs are in the Social Security Administration dealing with claim disputes. I don’t think anyone has a problem with that, and we can leave them alone. The NLRB, SEC, FTC. These cases belong in a real Article III court. Once we solve this issue, people can’t raise it in bad faith anymore to weasel out of consequences. Every litigant wants to win, and I agree that they are raising these issues to attack proceedings that they might lose on the merits. I believe it was Justice Kagan who said last term that there are a finite number of Constitutional issues with agency structure. Let’s just fix them all now.
    - avs733 3y ago
      >I don’t think anyone has a problem with that, and we can leave them alone. The NLRB, SEC, FTC. These cases belong in a real Article III court. So in other words, its a judgement question which should be left up to the legislature? What is the constitutional basis for that differentiation? The only difference I can see is a comfort subjecting individuals to this process and a discomfort subjecting corporations to it.

solardev 3y ago

I'd rather have these things handled by more democratic, if partisan, groups than an unelected, unaccountable, supreme court. If anything needs to go it's that court's makeup and structure. What an insult to democracy. There is nothing magical or sacred about the Supreme Court, especially these days. They're just political puppets.

granzymes 3y ago
You can’t have the rule of law without an independent judiciary. For me, I would rather have a jury of my peers and the protections of the Federal Rules of Evidence than go before a kangaroo agency court where my prosecutor was chosen by the same people who will ultimately decide my case (and in some agencies they also chose to bring the case in the first place; talk about prejudging the issue).
- solardev 3y ago
  I'm all for specialized courts following the rule of law, and juries of your peers. The supreme court is not independent. They are politically appointed, politically not appointed, accountable to no citizen, and very much a kangaroo court. At this point they're just party line puppets, empowering their benefactors with no actual regard to any philosophy like originalism or precedence. It'd be funny if it wasn't so sad how brazenly corrupt they are. That whole thing needs a redo.
  - granzymes 3y ago
    I wish you luck in reforming the Supreme Court. I just don’t think it has anything to do with the much more tractable issue of administrative courts.

tomohawk 3y ago

Not to mention that the current president took the unprecedented step of replacing the entire NLRB instead of just replacing members whose terms expired. That's a good way to get short term wins, but also guarantee more rancor and and even bigger push back later. While the constitution gives congress the authority to establish courts, these courts are all supposed to be in the judiciary. It boggles the mind that it would be contitutional for congress to delegate another branch's authority (the judicial branch's) to the executive branch.

averysmallbird 3y ago

NLRB decisions in unfair labor practice cases can be appealed to a US Court of Appeals?

granzymes 3y ago
Yes, but under a very deferential standard of review that makes it essentially impossible to contest any factual findings the ALJ or Board made. That’s a problem when the Board gets to decide the rules of evidence and stacks the deck in its favor.