Is Deference to the NLRB Finally Over?

For administrative lawyers, the October 2023 Supreme Court term hit like an earthquake. The Court handed down a series of epoch-making decisions, none more important than Loper Bright Enterprises v. Raimondo. There, the Court not only overruled one of the most cited decisions of all time, Chevron USA Inc. v. NRDC, but it also seemed to announce a new era of judicial review. No longer would courts defer to the legal judgments of administrative agencies; instead, they would decide legal questions for themselves.

Yet in some of those same agencies, the decision was met with the administrative equivalent of a yawn. Chief among the skeptics was the National Labor Relations Board, which quickly insisted that Loper Bright changed nothing. The Board maintained that it remained an “independent” agency with unique authority to articulate national labor policy. Its judgments had received deference for almost a century. So Loper Bright or not, it should continue to get deference from courts.

A year later, however, that view looks not only wrong, but diametrically wrong. In a concurring opinion in a late-term decision, FCC v. Consumers’ Research, Justice Brett Kavanaugh highlighted the danger of overbroad delegations to so-called independent agencies. He explained that these agencies occupy a uncertain place in the constitutional order, free from oversight by the president or the people. That lack of accountability makes them less trustworthy to handle the public’s business. So courts should be more, not less, vigilant in reviewing their handiwork.

That approach effectively finishes what Loper Bright started. It shows that Loper Bright left no special reserve for independent agencies. To the contrary, because of their unaccountability, independence agencies deserve the least deference in court.

Loper Bright, the Courts, and the Board

On its face, Loper Bright seemed to end the debate about deference to agencies. The Court’s logic was straightforward: In the Administrative Procedure Act (APA), Congress instructed reviewing courts to “decide all questions of law.” In other words, when the meaning of a statute was at issue, courts could not accept an agency’s interpretation at face value. Agency interpretations had no special place in the legal firmament. When it came to interpreting statutes, the only interpretations that mattered were those made by courts.

But not all agencies saw the decision that way. The Board, for one, maintained that Loper Bright didn’t even apply. In multiple court filings, the Board pointed out that it had been getting deference from courts long before Chevron was decided. As early as 1944, in NLRB v. Hearst Publishing, the Supreme Court had recognized the Board’s special role in developing national labor policy. That role came from a pre-APA statute, the National Labor Relations Act (NLRA). And it was the NLRA, not the APA, that justified deference to the Board. So to hear the Board tell it, Loper Bright changed nothing about the relationship between the Board and the courts.

To be sure, most courts have disagreed. The Fourth, Fifth, Sixth, and Tenth Circuits have all held that Loper Bright fully applies to the Board. These courts have reasoned that notwithstanding the Board’s independent status, Loper Bright requires courts to review the Board’s legal positions for themselves. Only the Third Circuit has come out differently, reasoning that the Board might still have some claim to special competence given its independence source of deference. But even that court declined to resolve the issue, instead reserving it for another day.

Consumers’ Research, Delegation, and the Accountability Gap

Those decisions mark a clear trend away from deference. But if there were still any uncertainty over the issue, it has likely been resolved by Justice Kavanaugh’s concurrence in Consumers’ Research. Justice Kavanaugh made clear that independent agencies have no better claim to special competence in interpreting statutes. If anything, their claim is worse.

On its face, Consumers’ Research had nothing to do with the Board, or even deference to agencies in general. Instead, it centered on whether Congress had improperly delegated too much power to the FCC to craft a “universal service” plan for telecom providers. The Court ultimately decided that the delegation was fine: Congress had laid out an “intelligible principle” for the agency to follow. So the outcome was far from the earthquake seen in Loper Bright.

But outcome aside, the case still cast light on the debate over independent agencies. Most illuminating was a separate concurrence by Justice Kavanaugh. Justice Kavanaugh started by observing that the FCC wasn’t an independent agency; its members were removable at will by the president. But if it had been, the result in Consumers’ Research might have been different. Independent agencies, he wrote, were by design “unaccountable” because they did not answer to the president. And that lack of accountability made them inherently problematic:

Such a system of disembodied independent agencies with enormous power over the American people and American economy operates in substantial tension with the principle of democratic accountability incorporated into the Constitution’s text and structure, as well as historical practice and foundational article II precedents.

Justice Kavanaugh saw two possible solutions to this conundrum. One would be to overturn Humphrey’s Executor v. FTC, a 1935 decision that allowed Congress to insulate the heads of certain independent agencies. That proposal wasn’t novel; scholars have written about it for decades, and the Court itself has recently suggested that Humphrey’s Executor may be on its last legs. The second solution, however, was new. Rather than overturn Humphrey’s Executor, Justice Kavanaugh suggested, courts could review the actions of independent agencies more closely. Courts could police the agencies’ decisions more diligently to make sure they were acting within the bounds set by elected lawmakers. Or in other words, they could apply a “more stringent version of the nondelegation doctrine.”

That second approach is essentially the opposite of the Board’s view. The Board claims that, as an independent agency, it is due more deference than its traditional executive counterparts. But under Justice Kavanaugh’s approach, the reverse would be true: the Board’s independence would make it especially ineligible for deference. The Board is by design unaccountable, so courts should review its decisions even more closely.

That approach would align with the Court’s recent trends. The Court has been increasingly skeptical of broad delegations to administrators. Its skepticism has been animated largely by concerns about accountability: the Court has been reluctant to let unelected officials wield vast governmental power. That concern is even more acute when the officials formally answer to no elected official, as they do in independent agencies like the Board. So lower courts should take note: what Loper Bright started, Consumers’ Research may have finished. It is increasingly hard to justify any deference to the Board.