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I suspect this is just their lawyers writing down every argument they can think of. But nobody but Clarence Thomas (if he's in a mood) is going to bite on that one. No matter how justified sweeping not just the NLRB but the entire administrative state would be.
Gorsuch might bite.
The fifth circuit has already bitten. In SEC v. Jarkesy the 5th circuit ruled that the SEC was unconstitutional because an officer with decision-making power (in this case an administrative law judge) who enjoys two layers of civil service protection (i.e. the formal process to fire an SEC ALJ for cause can only be initiated by the SEC members, not the President, and the SEC members themselves cannot be fired by the President without a formal process) is under insufficient Presidential control to comply with the Appointments Clause. Jarkesy was upheld by SCOTUS on the basis that SEC ALJ's violate the right to trial by jury, without reaching the Appointments Clause argument.
The identical logic trivially applies to the NLRB, and at least one district court in the 5th circuit has already ruled that the NLRB is unconstitutional on that basis. Richard Hanania has a good layman's explanation. This is why there is a sudden spate of lawsuits by everyone and his dog making the argument in different districts and circuits.
Both Jarkesy arguments figure in the Audubon case, although it is less obvious that the jury trial argument applies.
SCOTUS don't want to take the case, but I don't see them avoiding it - there is going to be a circuit split sooner or later. A less conservative Court ruled that the Public Companies Accounting Oversight Board was unconstitutional on similar grounds, but the remedy was to weaken the civil service protections of the board members, not to toss the whole thing out. Thomas, Alito and Gorsuch are going to follow that decision. Roberts is not going to be the fifth vote for an opinion that blows up large swathes of the administrative state, so it comes down to Barret and Kav.
The ACLU has been absolutely hammered in left-wing circles for filing a lawsuit that would blow up the NLRB (a different argument to do with technical defects in the appointment of the NLRB General Counsel) but MSM coverage of the case focused on the substantive argument (which was wokestupid vs free speech - the employee in question was fired for bitching about her manager to co-workers, which would normally be protected under labour law, but which the ACLU said was fireably racist because the manager was black). So I think Audubon would survive, but make a lot of enemies.
The Supreme Court, as is Robert's wont, completely nerfed Jarkesy. It only applies where the administrative law is in an area already covered by common law. So e.g. FAA regulations are completely untouched and you can still be penalized without a trial for violation thereof. I don't know if labor law would fall into that area or not; it seems like something that definitely would have been covered by common law before the NLRB.
The Supreme Court didn't reach the Appointments Clause issue of Jarkesy, which is therefore still good law in the 5th circuit. This is why every lawyered-up company (even lefty nonprofits!) in dispute with a union is filing "The NLRB is unconstitutional per Jarkesy" briefs.
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