The suit is contending that the Board’s use of Administrative Law Judges is unconstitutional. As has been discussed here before, there is potential for a sufficiently Shiny court to rule broadly, overturn 80 years of precedent, and rule the NLRB’s mission of inserting itself in the labor/management relationship, to any degree, is unconstitutional.
From what I’ve read, both John Roberts and Amy Comey Barrett understand the folly of having the Federal Court System making technical decisions best left to experts in the field. Would you really want the Supreme Court deciding an engineering and safety issue on a Boeing aircraft? I’d doubt they’d want the blood on their hands if they get it wrong.
There is a constitutional issue here. The NLRB requires that you use their in-house Administrative Law Judges. Since the ALJs are paid employees of the NLRB, an executive branch organization, the question is whether or not the setup allows for enough separation of powers (executive versus judicial branch).
That seems to be the approach; the Administrative Law judges deny the accused their “trial by jury”, and the judges are not “accountable”, that well worn “unelected judges legislating from the bench” narrative that comes up every time someone does not like a decision.
The article says these issues were litigated 80 years ago, but, with the courts in place now, some think the time is right for a wholesale overturn of precedents.
Where is there a requirement that there be a separation of powers in this instance?
I am not saying that they isn’t one, I just don’t know that there necessarily is a requirement that there be one.
Not all federal judgements have such protections. I think of the military. Service members are convicted by other service members. There is not a separate judiciary. In my own profession, I can be fined and lose my license without the ability to take matters before a separate judiciary. Same goes for many professions.
If the NRLB is unconstitutional, then likely so is the SEC as well as most if not all professional regulatory boards.
After you were fined and lost your license could you then go to a outside court and sue?
“An administrative agency that has denied, suspended, or revoked a license may be subject to legal action from the applicant or license holder. An applicant or license holder may assert a number of claims in the lawsuit against the agency, including the violation of certain rights and procedures.”
I’m not a lawyer, but that doesn’t seem the question. The issue is about one’s legal appeal being judged by the agency without remedy outside of the agency.