By Robert G. Brody and Fintan S. Lalor
The National Labor Relations Board (“NLRB”, or the “Board”) has undergone immense changes since President Trump resumed office. The most significant change, which has dominated the news and is discussed in greater detail here, was Trump’s unprecedented firing of the Board’s Democratic Member Gwynne Wilcox. The result of the firing has left the Board effectively paralyzed, without a quorum to hear cases or issue binding decisions. Additionally, as many predicted, Trump terminated the Board’s General Counsel Jennifer Abruzzo and replaced her with an Acting General Counsel of his choosing. But all of this may pale in comparison to the assertion that a President can fire administrative law judges (“ALJs”) who work for various governmental agencies.
There is little doubt that ALJs can be fired for various kinds of misconduct, but the new question is if ALJs can be fired by the President because their political views differ from the President’s? Judge Trevor McFadden (a Trump appointee), of the U.S. District Court for the District of Columbia, held that the safeguards in place protecting the Board’s ALJs from being fired by the President are unconstitutional. Shortly thereafter, the Department of Justice (“DOJ”) issued a letter to Congress outlining their position that the multiple layers of removal restrictions for ALL ALJs violates the Constitution, and proclaimed the DOJ will no longer defend such restrictions in court. In other words, it is the Trump Administration’s position that ALJs can be fired at will and without cause. Although this notion will certainly be subject to legal challenges, this is yet another instance of this Administration’s effort to further strengthen the President’s total control over his branch of the government and in doing so, it reshapes the separation of powers within the government.
What are Administrative Law Judges?
ALJs serve as both the judge and trier of fact over administrative hearings in Executive Branch Agencies. Many federal administrative agencies have ALJs, including the NLRB, the Social Security Administration, the Federal Energy Regulatory Commission, the Department of Labor, the Drug Enforcement Administration, and more. Pursuant to federal law, ALJs can only be removed for good cause.
Judge McFadden’s Decision
This issue of what kind of cause for discharge is necessary to remove an ALJ came before Judge McFadden. In the case of VHS Acquisition Subsidiary No. 7 v. NLRB, a hospital was charged with violations of the National Labor Relations Act. Consistent with its normal practices, the Board delegated the matter to one of its ALJs to hear and decide the case. Before the hospital addressed the substantive labor law issue the hospital claimed the job protections in place for the Board’s ALJs are unconstitutional. Judge McFadden agreed, labeling the job protections a “byzantine process [that] eviscerates the President’s ability to control NLRB ALJs.” Both Judge McFadden and the DOJ (in their recent letter to Congress) justified their stance by citing a 2010 U.S. Supreme Court ruling, Free Enterprise Fund v. Public Company Accounting Oversight Board, which found members of a Securities and Exchange Commission Board were unlawfully shielded from removal.
What now?
Judge McFadden’s decision (and the DOJ’s position) is already being appealed to the D.C. Circuit and may very well end up before the US Supreme Court. From a civics and balance of power standpoint, the question is should ALJs be free from political pressure when deciding administrative cases. If the DOJ’s position is upheld, then Trump (and all future Presidents) will be free to fire any ALJ whose decisions conflict with the Administration’s policy objectives.
Two interesting points should be considered. First an esoteric thought. Our government is slow to change based on its infrastructure and size. For better or for worse, the many civil servants who staff our government do not change with each election. The result is a relatively predictable and stable environment (i.e., while the captain of the ship may change quickly, the ship is still slow to actually change course). For those who want to see change quickly, this is a frustration, but the business community usually thrives on predictability. Removing protections for ALJs who disagree with the Administration will cause each Administration to more quickly effect change which will cause predictability to diminish. This may make running a business even more costly than it already is, assuming the new ALJs can become effective quickly. Time will tell.
The second issue is a practical one: where will the Administration find all the new ALJs, and what will this staffing change do to the efficiency of the Agencies? While there are only about 1,900 ALJs at issue, the time it will take to find new ALJs and get them up and running will be a challenge for any new Administration. If the Supreme Court upholds Judge McFadden’s decision, these and many more questions will have to be answered.
Brody and Associates regularly advises its clients on all labor management issues, including collective bargaining strategies, and provides union-free training and counsel. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
