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If I understand it correctly, Amazon's argument here appears to be that the NLRB's statutory authority (i.e., its power to adjudicate labor disputes) is essenti

If I understand it correctly, Amazon's argument here appears to be that the NLRB's statutory authority (i.e., its power to adjudicate labor disputes) is essentially unconstitutional, as it deprives Amazon (and other companies) of the ordinary trial process. If this interpretation is correct, the consequences are disturbing: a ruling against the NLRB here would imply absolute judicial supremacy, and not a system of checks and balances. In effect, it'd break the US Government's regulatory backbone: any regulatory decision could be challenged not within its statutory limits (or for exceeding its statutory limits), but on the basis of statutory regulation itself being unconstitutional. In effect, it would amount to a government whose regulatory framework is not controlled by the elected branches, but by the sole unelected one.

jeffbee 3y ago
Yeah that's why the Trump court loves it. It's the federalist society long game.
- vundercind 3y ago
  Bust up federal regulatory authority -> force states into a regulatory race-to-the-bottom to attract business -> profit.
extheat 3y ago
The 5th Circuit court of appeals has already ruled similarly that the SEC's in house courts are unconstitutional, and that Congress can't delegate its legislative/judicial powers to the executive branch in that case under the separation of powers [1], a case that will likely be heard by the SCOTUS. By extension, if that is upheld, the idea is that this same principle could be applied to other executive branch administrative courts like in use at the NLRB. [1] https://www.winston.com/en/blogs-and-podcasts/government-program-fraud-false-claims-act-and-qui-tam-litigation-playbook/fifth-circuit-holds-that-secs-use-of-in-house-courts-to-adjudicate-enforcement-actions-is-unconstitutional https://www.winston.com/en/blogs-and-podcasts/government-pro... "Fifth Circuit Holds That SEC’s Use of In-House Courts to Adjudicate Enforcement Actions Is Unconstitutional"
- Farfignoggen 3y ago
  Congress can Overrule the SCOTUS and the Voters can Change Congress and if things get too Conservative Activist in the SCOTUS and the 1%-5% of the wealthy in the US get too much sway then that's only one Depression Away there from moving back the other direction, A La FDR and another New Deal! And just because any Administrative Law Court and agency is set up under the executive branch does not mean that it was not set up by Congress and is not under Congressional Review where the Executive Branch head of any agency gets reviewed by a Congressional Committee on a regular basis. Congress sets up administrative Courts and any Administrative Law Court NLRB/Other Administrative Law Court can have its decisions appealed to a Federal District Court or a DC Circuit panel of Judges and on up to the SCOTUS.
Manuel_D 3y ago
> In effect, it would amount to a government whose regulatory framework is not controlled by the elected branches, but by the sole unelected one. How is the NRLB "controlled by elected branches" but judicial systems are not? Judges are appointed, not elected - actually, some lower court judges are elected. Same with the NRLB. It's just changing authority from one completely unelected branch of government to another branch that has a mix of elections and appointments.
- woodruffw 3y ago
  The NLRB is an independent agency of the US Government, which means that its power derives from the statutory authority of Congress. That's what makes it controlled by one of the elected branches. (The argument is not that the NLRB itself is elected, or needs to be. It's whether the judicial branch has the authority to diminish Congress or the Executive's statutory authorities as enumerated under the constitution.)
  - Manuel_D 3y ago
    And judges also enforce the laws passes by Congress (and state and local laws). They're both ultimately enforcing laws passes by Congress.
  - beaeglebeached 3y ago
    The tenth amendment constrains congress from regulating outside enumerated powers. Intrastate trade is not an enumerated power. Most applications of the NLRB are tyrannical short-circuits.
    - woodruffw 3y ago
      First of all, there's no evidence that any of this is intrastate or that Amazon has made a claim on the basis of intrastate trade (this would be a flabbergasting claim for them to make, given that their business is horizontally integrated across 50 states). Second: the relevant decision here is NLRB v. Jones & Laughlin, which puts it succinctly[1]: > Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. I'm not aware of a more recent ruling that changes that doctrine.
yostrovs 3y ago
If they strike down "Chevron", which they might just do this year, that will be what you're referring to. https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
303uru 3y ago
SCOTUS has to be checked somehow. Make no mistake about it, this is another power grab. This SCOTUS is snatching up Executive and Congressional powers day after day and assigning them unto itself. Do Conservatives really want to live in a world where courts and often ultimately SCOTUS are deciding labor matters, which drugs are safe & efficacious, whether or not it's safe for PFAS to be in your drinking water? Because this, Chevron, and other cases being heard and under review are on the path to do just that.
- deleted 3y ago
  [deleted]
- dmatech 3y ago
  No, but it's perfectly fine for lawmakers to make laws setting these standards (ideally with the input of experts). That's how we get local building codes. The ultimate power to make policy choices should be made by lawmakers who can be voted out. Bureaucrats are too insulated. An individual bureaucrat can't feasibly be fired by either a President or the Congress.
  - rob74 3y ago
    Neither can a Supreme Court judge...
  - 303uru 3y ago
    No one is more insulated than SCOTUS, period, end of story. Your point is moot.
  - jaybrendansmith 3y ago
    How are bureaucrats insulated, exactly? Congress can change laws whenever they want. Read your history ... when congress first provided the federal government the ability to collect tariffs, they didn't include in the constitution instructions for how the US Coast Guard would work. Hamilton did that, providing regulation for exactly what kind of boats, equipment, employees, and many other details. It would have been unthinkable by the founders that the Supreme Court would be able to vote to disallow the use of a certain kind of boat, or the policing of a specific waterway. These corporations are attempting to get the US Supreme Court to re-litigate the entire 250 years of settled law and regulation. There are no words.
tomoyoirl 3y ago
I’m sorry, I don’t understand the mechanism of “absolute judicial supremacy”. The judges are checked and balanced by executive appointment, and legislative confirmation. They also can be impeached by the legislature. Same as it ever was: perhaps this is no longer sufficient, but surely it is not new? The legislature, setting up this agency as a parallel judiciary/executive that both prosecutes cases and judges them, while also insulated from the presidential oversight, is setting up something accountable only to Congress, and unchecked. The supremacy here which you advocate here semi-explicitly is Congressional supremacy. It could be argued this is better! It is more directly democratic, after all, and it’s probably more like parliamentary systems. But it’s sure not what the US constitution went for in the eighteenth century, nor has anyone amended it since.
- woodruffw 3y ago
  I meant in statutory matters. You're right that the judicial branch would still be checked in other matters, e.g. appointment and confirmation. I don't deny that the judicial branch has the authority to review these semi-judicial schemes designed by the legislative branch. What I find concerning is the broader conclusion: that the legislative branch may effectively have no regulatory power behind its statutory power, and that all regulatory decisions or adjudications would have to flow through a judicial process instead of the competent agency or department. In effect, this would both gum up the US's regulatory machinery by making legislative acts themselves toothless. That seems pretty bad to me, and not in keeping with the enumerated powers of each branch.
  - nvm0n2 3y ago
    [dead]
  - sokoloff 3y ago
    Even the enforcement powers that are not held in the judiciary should be vested and exercised in the executive branch, should they not? Meaning the legislative branch should not have both legislative and enforcement powers. I think of the FAA, FDA, and the like as being part of the executive branch, not the legislative. Quick Google seems to back that up (and it matches my model of checks and balances from civics.)
deleted 3y ago
[deleted]
cnelsenmilt 3y ago
The clear solution should this stand is to include a Terms of Incorporation when a business is created stipulating that they waive their right to a trial and that any labor disputes will be settled by independent arbitration.
- ImJamal 3y ago
  Aren't corporations incorporated on the state level? Unless I am missing something at least one state would not include this in their terms and companies would flock to that state if they wanted trials.
- hobotime 3y ago
  The courts have routinely said you can't sign your rights away. This has gotten muddy with arbitration clauses being sometimes upheld, but for example, you can't sign a contract to entry into slavery for example.
  - dctoedt 3y ago
    Courts have also routinely said that you CAN sign away your rights, i.e., waive them; courts enforce waivers every single day.
    - samatman 3y ago
      The law distinguishes between alienable and unalienable rights. The right to a trial is by common law an unalienable one.
      - dctoedt 3y ago
        That’s incorrect: Jury-trial waivers are routinely enforced. (California and Georgia won’t enforce advance jury waivers in state courts, as a matter of state law, not federal-constitutional law.) And there's also a thing called a "confession of judgment," which in effect is a waiver of any trial.
rob74 3y ago
Amazon's argument can be basically anything that will give the Supreme Court an excuse to accept it...
newZWhoDis 3y ago
Slowly but surely people are starting the realize that the vast majority of the federal government’s regulatory machinery is illegal/unconstitutional. The ATF is one of the worst examples, but the NLRB here is also wrong. I understand this will come with a reflexive downvote from many who don’t like the outcome, but this has been warned about for decades: Administrative law isn’t. The executive has no right to act as the police, legislative, and judiciary at the same time. This is true even if it gives you the outcomes you personally want.
- tbrownaw 3y ago
  > I understand this will come with a reflexive downvote from many who don’t like the outcome Are you sure they're not from people who think this sort of preemptive griping looks like a manipulation attempt.
  - EgregiousCube 3y ago
    I don't agree or disagree with the parent comment, but what do you mean by manipulation here?
  - newZWhoDis 3y ago
    1) post unpopular (sincere) opinion: get downvoted/flagged 2) post unpopular (sincere) opinion, with a disclaimer that you expect to get downvoted: Get accused of being manipulative 3) wrap said unpopular opinion in flowery emotional language “I’m not an X by any means, but I think Y” still get downvoted and flagged 4) pretend/lie: post what the hive mind wants and get upvotes The system encourages you to lie, in fact it rewards you for betraying your convictions and just posting what you think others want to hear. Your post is accusing me (subtly) of posting in bad faith, when in fact bad faith posting is what would make my karma go up.
    - deleted 3y ago
      [deleted]
sershe 3y ago
It's not judicial supremacy other than the constitutional authority of the courts to interpret the law. Congress still passes the law - if they want it to be interpreted differently, they can just be more specific. In this case especially, it improves checks and balances - judges will check the executives, instead of executive-appointed quasi-judges with obvious incentive issues. Frankly while I don't think the "originalist" interpretation here is correct, clearly early congresses delegated broad and vague authority to executive in various matters, I actually think it's one of the weaknesses of the original intent of the founders. I assume, given that the early American elite was a relatively small group of people with a lot in common, they didn't foresee the need to micromanage each other in such matters. Now that executive employs millions of people, I think it's necessary. Like, when CDC can suspend probably the most common private contract in the country (rent) under the delegated authority to fight diseases, this is a step too far for me; and even if you don't think so, what would you think of China-style extreme lockdowns? There needs to be a way to draw the line over vague delegation of power. If IMPROVES checks and balances - judicial can check the executive. Congress can still explicitly give executive the authority it needs and override the judges. Same for NLRB - pass labor law as the normal laws that the normal judges can interpret. Next stop, make Commerce Clause unimportant again ;)

jeffbee 3y ago

Yeah that's why the Trump court loves it. It's the federalist society long game.

vundercind 3y ago
Bust up federal regulatory authority -> force states into a regulatory race-to-the-bottom to attract business -> profit.

extheat 3y ago

The 5th Circuit court of appeals has already ruled similarly that the SEC's in house courts are unconstitutional, and that Congress can't delegate its legislative/judicial powers to the executive branch in that case under the separation of powers [1], a case that will likely be heard by the SCOTUS. By extension, if that is upheld, the idea is that this same principle could be applied to other executive branch administrative courts like in use at the NLRB. [1] https://www.winston.com/en/blogs-and-podcasts/government-program-fraud-false-claims-act-and-qui-tam-litigation-playbook/fifth-circuit-holds-that-secs-use-of-in-house-courts-to-adjudicate-enforcement-actions-is-unconstitutional https://www.winston.com/en/blogs-and-podcasts/government-pro... "Fifth Circuit Holds That SEC’s Use of In-House Courts to Adjudicate Enforcement Actions Is Unconstitutional"

Farfignoggen 3y ago
Congress can Overrule the SCOTUS and the Voters can Change Congress and if things get too Conservative Activist in the SCOTUS and the 1%-5% of the wealthy in the US get too much sway then that's only one Depression Away there from moving back the other direction, A La FDR and another New Deal! And just because any Administrative Law Court and agency is set up under the executive branch does not mean that it was not set up by Congress and is not under Congressional Review where the Executive Branch head of any agency gets reviewed by a Congressional Committee on a regular basis. Congress sets up administrative Courts and any Administrative Law Court NLRB/Other Administrative Law Court can have its decisions appealed to a Federal District Court or a DC Circuit panel of Judges and on up to the SCOTUS.

Manuel_D 3y ago

> In effect, it would amount to a government whose regulatory framework is not controlled by the elected branches, but by the sole unelected one. How is the NRLB "controlled by elected branches" but judicial systems are not? Judges are appointed, not elected - actually, some lower court judges are elected. Same with the NRLB. It's just changing authority from one completely unelected branch of government to another branch that has a mix of elections and appointments.

woodruffw 3y ago
The NLRB is an independent agency of the US Government, which means that its power derives from the statutory authority of Congress. That's what makes it controlled by one of the elected branches. (The argument is not that the NLRB itself is elected, or needs to be. It's whether the judicial branch has the authority to diminish Congress or the Executive's statutory authorities as enumerated under the constitution.)
- Manuel_D 3y ago
  And judges also enforce the laws passes by Congress (and state and local laws). They're both ultimately enforcing laws passes by Congress.
- beaeglebeached 3y ago
  The tenth amendment constrains congress from regulating outside enumerated powers. Intrastate trade is not an enumerated power. Most applications of the NLRB are tyrannical short-circuits.
  - woodruffw 3y ago
    First of all, there's no evidence that any of this is intrastate or that Amazon has made a claim on the basis of intrastate trade (this would be a flabbergasting claim for them to make, given that their business is horizontally integrated across 50 states). Second: the relevant decision here is NLRB v. Jones & Laughlin, which puts it succinctly[1]: > Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. I'm not aware of a more recent ruling that changes that doctrine.

yostrovs 3y ago

If they strike down "Chevron", which they might just do this year, that will be what you're referring to. https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/ https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

303uru 3y ago

SCOTUS has to be checked somehow. Make no mistake about it, this is another power grab. This SCOTUS is snatching up Executive and Congressional powers day after day and assigning them unto itself. Do Conservatives really want to live in a world where courts and often ultimately SCOTUS are deciding labor matters, which drugs are safe & efficacious, whether or not it's safe for PFAS to be in your drinking water? Because this, Chevron, and other cases being heard and under review are on the path to do just that.

deleted 3y ago
[deleted]
dmatech 3y ago
No, but it's perfectly fine for lawmakers to make laws setting these standards (ideally with the input of experts). That's how we get local building codes. The ultimate power to make policy choices should be made by lawmakers who can be voted out. Bureaucrats are too insulated. An individual bureaucrat can't feasibly be fired by either a President or the Congress.
- rob74 3y ago
  Neither can a Supreme Court judge...
- 303uru 3y ago
  No one is more insulated than SCOTUS, period, end of story. Your point is moot.
- jaybrendansmith 3y ago
  How are bureaucrats insulated, exactly? Congress can change laws whenever they want. Read your history ... when congress first provided the federal government the ability to collect tariffs, they didn't include in the constitution instructions for how the US Coast Guard would work. Hamilton did that, providing regulation for exactly what kind of boats, equipment, employees, and many other details. It would have been unthinkable by the founders that the Supreme Court would be able to vote to disallow the use of a certain kind of boat, or the policing of a specific waterway. These corporations are attempting to get the US Supreme Court to re-litigate the entire 250 years of settled law and regulation. There are no words.

tomoyoirl 3y ago

I’m sorry, I don’t understand the mechanism of “absolute judicial supremacy”. The judges are checked and balanced by executive appointment, and legislative confirmation. They also can be impeached by the legislature. Same as it ever was: perhaps this is no longer sufficient, but surely it is not new? The legislature, setting up this agency as a parallel judiciary/executive that both prosecutes cases and judges them, while also insulated from the presidential oversight, is setting up something accountable only to Congress, and unchecked. The supremacy here which you advocate here semi-explicitly is Congressional supremacy. It could be argued this is better! It is more directly democratic, after all, and it’s probably more like parliamentary systems. But it’s sure not what the US constitution went for in the eighteenth century, nor has anyone amended it since.

woodruffw 3y ago
I meant in statutory matters. You're right that the judicial branch would still be checked in other matters, e.g. appointment and confirmation. I don't deny that the judicial branch has the authority to review these semi-judicial schemes designed by the legislative branch. What I find concerning is the broader conclusion: that the legislative branch may effectively have no regulatory power behind its statutory power, and that all regulatory decisions or adjudications would have to flow through a judicial process instead of the competent agency or department. In effect, this would both gum up the US's regulatory machinery by making legislative acts themselves toothless. That seems pretty bad to me, and not in keeping with the enumerated powers of each branch.
- nvm0n2 3y ago
  [dead]
- sokoloff 3y ago
  Even the enforcement powers that are not held in the judiciary should be vested and exercised in the executive branch, should they not? Meaning the legislative branch should not have both legislative and enforcement powers. I think of the FAA, FDA, and the like as being part of the executive branch, not the legislative. Quick Google seems to back that up (and it matches my model of checks and balances from civics.)

deleted 3y ago

[deleted]

cnelsenmilt 3y ago

The clear solution should this stand is to include a Terms of Incorporation when a business is created stipulating that they waive their right to a trial and that any labor disputes will be settled by independent arbitration.

ImJamal 3y ago
Aren't corporations incorporated on the state level? Unless I am missing something at least one state would not include this in their terms and companies would flock to that state if they wanted trials.
hobotime 3y ago
The courts have routinely said you can't sign your rights away. This has gotten muddy with arbitration clauses being sometimes upheld, but for example, you can't sign a contract to entry into slavery for example.
- dctoedt 3y ago
  Courts have also routinely said that you CAN sign away your rights, i.e., waive them; courts enforce waivers every single day.
  - samatman 3y ago
    The law distinguishes between alienable and unalienable rights. The right to a trial is by common law an unalienable one.
    - dctoedt 3y ago
      That’s incorrect: Jury-trial waivers are routinely enforced. (California and Georgia won’t enforce advance jury waivers in state courts, as a matter of state law, not federal-constitutional law.) And there's also a thing called a "confession of judgment," which in effect is a waiver of any trial.

rob74 3y ago

Amazon's argument can be basically anything that will give the Supreme Court an excuse to accept it...

newZWhoDis 3y ago

Slowly but surely people are starting the realize that the vast majority of the federal government’s regulatory machinery is illegal/unconstitutional. The ATF is one of the worst examples, but the NLRB here is also wrong. I understand this will come with a reflexive downvote from many who don’t like the outcome, but this has been warned about for decades: Administrative law isn’t. The executive has no right to act as the police, legislative, and judiciary at the same time. This is true even if it gives you the outcomes you personally want.

tbrownaw 3y ago
> I understand this will come with a reflexive downvote from many who don’t like the outcome Are you sure they're not from people who think this sort of preemptive griping looks like a manipulation attempt.
- EgregiousCube 3y ago
  I don't agree or disagree with the parent comment, but what do you mean by manipulation here?
- newZWhoDis 3y ago
  1) post unpopular (sincere) opinion: get downvoted/flagged 2) post unpopular (sincere) opinion, with a disclaimer that you expect to get downvoted: Get accused of being manipulative 3) wrap said unpopular opinion in flowery emotional language “I’m not an X by any means, but I think Y” still get downvoted and flagged 4) pretend/lie: post what the hive mind wants and get upvotes The system encourages you to lie, in fact it rewards you for betraying your convictions and just posting what you think others want to hear. Your post is accusing me (subtly) of posting in bad faith, when in fact bad faith posting is what would make my karma go up.
  - deleted 3y ago
    [deleted]

sershe 3y ago

It's not judicial supremacy other than the constitutional authority of the courts to interpret the law. Congress still passes the law - if they want it to be interpreted differently, they can just be more specific. In this case especially, it improves checks and balances - judges will check the executives, instead of executive-appointed quasi-judges with obvious incentive issues. Frankly while I don't think the "originalist" interpretation here is correct, clearly early congresses delegated broad and vague authority to executive in various matters, I actually think it's one of the weaknesses of the original intent of the founders. I assume, given that the early American elite was a relatively small group of people with a lot in common, they didn't foresee the need to micromanage each other in such matters. Now that executive employs millions of people, I think it's necessary. Like, when CDC can suspend probably the most common private contract in the country (rent) under the delegated authority to fight diseases, this is a step too far for me; and even if you don't think so, what would you think of China-style extreme lockdowns? There needs to be a way to draw the line over vague delegation of power. If IMPROVES checks and balances - judicial can check the executive. Congress can still explicitly give executive the authority it needs and override the judges. Same for NLRB - pass labor law as the normal laws that the normal judges can interpret. Next stop, make Commerce Clause unimportant again ;)