Posts tagged Article III of the Constitution
Commentary: Is the NLRB Unconstitutional? The Courts May Finally Decide.
December 6, 2023 // While many agencies act politically, the Board is a special problem. Unlike other agencies, the Board makes almost all its decisions not through rulemaking, but through one-off panel decisions. That means it can change policy much faster. The “law” can swing wildly from case to case. In fact, according to one study, the Board during the Obama administration reversed a group of decisions that had been on the books for more than a collective 4,500 years. The Board’s constitutional flaws are also different from those of other agencies. For example, in a recent case involving the SEC, the Fifth Circuit Court of Appeals held that the agency’s structure violated the Seventh Amendment. That was because the SEC can impose civil fines—the kind of claims that must be tried to a jury. The Board has no authority to impose civil fines, so it doesn’t have the same Seventh Amendment problem. Its problem instead comes instead from its unchecked power to decide cases. It controls the outcome in disputes affecting a range of private rights. And those disputes, according to Article III of the Constitution, should be decided only by real judges.