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.
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.
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.
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.
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.
>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.
The difference is that the Social Security Administration is administering a public benefit which has no analogy to a suit at common law. But we need Congress to fix this regardless. The Supreme Court can break it but can’t fix it.
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.
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.
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).
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.
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.
They have a reasonable case. The idea of "independent federal agencies" that make substantive policy, are immune to democratic control, and also get to play-act as pseudo judicial bodies is a constitutional abomination.
THEY ARE NOT immune from democratic control. That's a common falsehood promoted by the extreme right. Congress has the power to reign them in any time they choose. Congress simply prefers to whimp out and lie to their constituents that "there's nothing they can do" and transfer blame to someone else.
Woah there. Congress does not have the right to delegate the authority given to them by the constitution. So it is indeed unconstitutional. A great many of the alphabet soup agencies are in this boat. Whole lot of unconstitutional behavior going around and nobody really bats an eye.
On what basis do you believe Congress is not allowed to delegate any power. The idea that statutes cannot allow for administrative rulemaking is some psycho libertarian bullshit because it is literally impossible to run an administrative state where the nuts and bolts (rather than just the goals, outcomes, and boundaries) of the administration of law must be handled legislatively.
Agencies cannot make law. SCOTUS has repeatedly said congress cannot delegate legislative authorities to other agencies. That they do it anyway does not make it constitutional.
Agencies don't make law. They make rules which implement and execute the statutes which provide for their authority. This has been upheld as valid in many, many cases.
> Congress does not have the right to delegate the authority given to them by the constitution.
> On what basis do you believe Congress is not allowed to delegate any power.
.... provides link proving point ...
> Agencies don't make law.
So you agree with me? What do you think the legislative branch of the government does besides legislate? Many times these agencies have overstepped their bounds, they are only rarely challenged on their unconstitutional behavior - lawsuits being hard and expensive. Some people even condone this unconstitutional behavior because it furthers their agenda.
The joke processes that NRLB has setup are the source of its own demise. If they simply follow the law and didn't make up quasi-judicial proceedings they might be fine. Like many agencies before them, the NRLB will be taken to court, the court will find that _yet another agency_ has been assuming the authority delegated to congress by the Constitution, and they will be reversed.
Maybe you can explain why that won't happen? It sounds like SpaceX has a strong case here.
I suspect several people in this thread are conflating the non-delegation doctrine with the major questions doctrine, which is a confusing narrative that has been pushed to make the major questions doctrine seem less whackado.
Executive departments not answerable to the President are unconstitutional, full stop. We do not allow Congress to delegate its authority and/or strip authority from the President and move it into a fourth branch of government.
I always find it weird when people make statements like yours, full of confidence that what they are saying is the way everything is and should be, when they are literally completely and utterly wrong. What you have is an opinion of how you think the government should be run, based on your interpretation of the constitution. The reality is that the Supreme Court thinks your interpretation is wrong, and since they're the deciding factor that means your interpretation is wrong.
They can be "independent", provided the President is able to fire them. That is the mechanism for accountability. NLRB directors only being fireable for cause, rather than because the people's elected representative chooses to can them as a matter of state policy, is unconstitutional.
You may have that political position, but you're wrong on the merits.
The non-delegation doctrine exists, but independent agencies survive because its administrators are Presidentially appointed and Congressionally confirmed, and other factors. Other commenters have rightfully also pointed out that you probably have more chance to engage in the democratic process with an independent agency, which also tend to have greater representation from the political party not in control of the Presidency.
It would be correct to say that there are new attacks on the administrative courts systems and extent of deference to administrative rulemaking. But you're wrong about independent agencies.
So they're only immune from democratic control in reality, but technically they could be reigned in if the people that are happy to let them run free would decide to 180 their positions? Sounds like effective democratic control to me.
We've had "independent federal agencies" since before we had the constitution. Our entire economy, specifically the federal reserve, is based on independent agencies.
The case in question isn't about whether independent agencies can exist or not. The claim is that the way the panel is appointed is not constitutional. If they win the case then it would simply require the board to be appointed in a more specific way.
> SpaceX in its lawsuit claims that, because federal law only allows board members and administrative judges to be removed for cause, and not at will, the NLRB’s structure is unconstitutional. The lawsuit seeks to block the NLRB case from moving forward.
There's also a second claim that they should be allowed a jury trial.
> In its lawsuit, however, SpaceX claims that the NLRB proceedings violate the company’s “constitutional right to trial by jury.”
The constitutionality of the agency itself isn't what's being discussed.
"Independent" just meaning "not part of a cabinet secretariat" is not at issue. When the claim is that the governance structure and the pseudo judicial hearings by which they actually exercise authority are unconstitutional it's fair to qualify the argument as "the agency is unconstitutional".
No one would have an issue if the board and officers were fireable by the president at will, like they are at say the CIA or EPA, and if they had to actually go to court to allege violations of the law.
Yeah, that's not true at all. The NLRB, like all agencies, was created by act of congress and given a remit to regulate areas of civic life within a specific range of factors. A complainant can try to argue that a specific regulation is outside their remit or otherwise in contravention to other Constitutional protections, but they can't just say the agency has no right to make rules. There's a gigantic stack of precedent that Congress or the courts can rein in specific rules, but so long as they within the bounds set in their charter, they are absolutely allowed to make new rules with the force of law (ie can the EPA regulate carbon emissions as "pollution"). It's just standard bureaucracy since it would be utterly impossible to put every single minute regulation up for Congressional debate. Especially when they require niche technical expertise to even understand.
The allegations are legal soup anyway. The NLRB made up on the spot that criticism of the CEO was protected speech. There's nothing to say other than "you just made up that rule".
Vs. “this faceless unelected bureaucrat can shut down my business because of reason him and his unelected coworkers literally just made up without any legislation”. I’m going with the one that protects private sector over government.
faceless beaucrat tells faceless corporation its violating the law doesn't bother me all that much. What you see from BOTH is people's perspectives coming out in which side of an argument they humanize and which side they dehumanize.
We also get things like companies being able to refuse to give your data to the police without a warrant (unreasonable search and seizure protection for people).
Not really. Companies are owned by people, and if a federal agency can fine a company $10mm, they are taking that property from one or more people. It's still a direct financial taking from owners.
It seems like there is a better argument. The 10th amendment basically says if it is not given to the federal government and not banned by the Constitution it is left to the states. Labor rules are not mentioned in the Constitution so a plain reading of the amendment and Constitution would mean labor rules are left to the states and the federal government has no authority in the matter.
Then again if such a thing is accurate then 3/4 of the federal government is unconstitutional.
People don't always get trials by jury either (petty traffic cases being perhaps the most common example), and SpaceX does have the opportunity to testify and present evidence to a judge. As far as evil actions by evil corporations go, they're about to get a slap on the wrist for the 0.1% of employees directly affected by the allegations. Is that major enough to warrant a trial by jury in the first place?
It looks to me like the point is to ensure that if these allegations are false then there's a reasonable chance to defend against them (not a trial by jury, but nobody's being accused of murder or thrown in jail either), and that if they're true then reasonable remedies are applied this decade, while they still matter.
I can see the argument for not just wanting some bureaucrat to be judge, jury, and executioner, _but_ that's also not what's happening here, is it?
> People don't always get trials by jury either (petty traffic cases being perhaps the most common example)
And this is also a gross miscarriage of justice, and basically is uncontrolled rampant taxation.
And somehow, its done as a contortion that the BMV "allows" you to drive, so you're bound by their ALJs, who are actual judges but with laughable standards. And the BMV can revoke driving rights for any/no reason.
Its cause the system would drown if citations actually required a real court and jury and such. So the state just jedi-hand-waves and says no.
Hopefully, SCOTUS decision will also remove this BMV speeding ticket bullshit in kangaroo court.
> And this is also a gross miscarriage of justice, and basically is uncontrolled rampant taxation.
I agree wholeheartedly. The world you appear to want (similar enough I think to the one I want) isn't the one we live in though, so it'd be weird to grant SpaceX special privileges. This won't be the start of a grassroots movement to fix that injustice; it'll be one exemption to let SpaceX fuck over their employees, customers, and shareholders a bit more easily.
I wonder if Elon is distracting people from the issue: can you go into an office, openly announce to everyone your boss is a terrible human being who should be denounced, and reasonably expect to keep your job?
Workers should have the right to improve their working conditions, but not to hate on coworkers. Be they bosses or subordinates.
Regardless, the unconstitutional part is this decision is like an illegally created new law - it essentially carries the weight of law, can only be appealed to the people who made the law, and was never debated or voted by democratically elected reps.
SpaceX should have their federal contracts pulled (>$1B) to put his power trip in check. Certainly, challenge the system if you feel wronged, but don't be surprised when the system pushes back.
The executive branch has made their position on labor rights known [1] [2], take government dollars away from bad faith actors if they must.
We want different things, and Elon believes himself accountable to no one and desires absolute unelected power. See you at the voting booth, I want people like him kept in check until gone. I am willing to compromise a bit on governance out of pragmatism considering how people like him will use any bugs or loopholes in systems to achieve their desired outcome, crushing anyone along the way who they believe impedes said outcome.
Like Oracle [1], don't be mad at the lawnmower. It's just a lawnmower. Protect yourself from it, because it doesn't care who it hurts [2]. Elon believes empathy is a weakness, for example. It's like trying to negotiate with a Great White shark. You're gonna have a bad time. I'm advocating for a cage to protect us, not the shark. Let the shark be the shark while minimizing the harm it causes.
> Elon believes himself accountable to no one and desires absolute unelected power
From your own link in the other comment, it looks like Musk wants the exact opposite?
> Isaacson explained that Musk's decision stemmed from his desire to distance himself from any involvement in the Russian-Ukrainian conflict.
> However, the situation has taken a turn, with Musk now choosing to hand over both terminals and control to the United States Army. In a candid conversation with Isaacson, Musk expressed his concern about being inadvertently drawn into a war, stating that his primary intent with Starlink was to provide people with entertainment, not to contribute to a potential nuclear conflict.
> SASC Chairman Jack Reed: ‘Neither Elon Musk, nor any private citizen, can have the last word when it comes to U.S. national security’
> Air Force Secretary Frank Kendall told reporters this week that he was not familiar with the terms of SpaceX’s agreement with Ukraine but noted that any company that signs a contract with DoD, including one run by a powerful billionaire, would be expected to comply with the terms of that contract.
> Reed in the statement Sept. 14 said “serious national security liability issues have been exposed and the committee is engaged on this issue.”
> SpaceX’s president Gwynne Shotwell said last month that the company did not intend for Starlink to be “weaponized.” [1]
At the same time, they are selling StarLink specifically as a next gen data platform in military aircraft for the last five years, on a variety of US DoD military aircraft platforms [2] [3]. So it's weaponized sometimes but it isn't? This is either "what is the definition of is" or cleaning up with PR what Elon directed at the time.
Elon used the fact that the arrangement was fluid around the Ukraine service delivery to push his will, and the US Gov had to tighten the leash in response (my comment above your reply to this comment). It is not good when a congressional committee rep uses the words “serious national security liability issues" to describe your actions.
[2] https://maxpolyakov.com/hidden-military-potential-of-starlin... ("The USAF decided to test the new satellite internet first. Tests of the technology started immediately after SpaceX signed the contract for it in 2019. First, the Air Force successfully tested internet connection on a slower twin-engine aircraft, the Beechcraft C-12 Huron. During the test flight with the Starlink terminal, the data transfer rate was 610 Mbps. Later that year, satellite communications were evaluated for the larger Lockheed AC-130. Later on, modern fighter aviation was also connected to the project. Starlink tests in March-April 2022 took place on the fifth-generation supersonic the F-35A Lightning II fighter jet, whose maximum speed reaches 1906 km/h (850 km/h at cruising speed).")
> So it's weaponized sometimes but it isn't? This is either "what is the definition of is" or cleaning up with PR what Elon directed at the time.
One can be comfortable with weaponization by their own country of things that are specifically sold to the military for military use, and be uncomfortable with a foreign country weaponizing things that were sold for civilian use. What is wrong with wanting to leave that decision to their own countries' political and military leadership?
> It is not good when a congressional committee rep uses the words “serious national security liability issues" to describe your actions
This is way overblown, members of congress say things all the times for PR purposes that amount to nothing in the long run, for example the recent iMessage blocking by Apple, four members called it out, and yet Apple just ignored them.
I'm not arguing to nationalize SpaceX yet, that's a bridge too far at this point. But there are lots of points of leverage between here and there. Elon appears to be very emotional and driven to make irrational decisions in certain circumstances (Twitter). I believe, under the right circumstances, the case could be made that he is no longer able to retain control of an org with nation state launch and global satellite comms capabilities. The DoD was able to gain some authority over a part of Starlink after the Ukraine events [1].
If you look at the history of the United States government, I think it is fairly obvious the force they can apply when desired, to everyone from individuals to other nation states. I'm not arguing what event would trigger a cascade of authority transfer, simply that it can be done. A corporation is a shared delusion; if the government walks in and takes control under national security interests, you are going to have limited recourse.
That seems pretty inconsistent with his belief in free speech absolutism. Not to mention, that employees are not stating "boohoo I hate my boss" they are saying (very appropriately) that he is harming the company by causing disrepute.
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.