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Comment by woodruffw | Hacker News Reader

If I understand it correctly, Amazon's argument here appears to be that the NLRB's statutory authority (i.e., its power to adjudicate labor disputes) is essentially unconstitutional, as it deprives Amazon (and other companies) of the ordinary trial process.

If this interpretation is correct, the consequences are disturbing: a ruling against the NLRB here would imply absolute judicial supremacy, and not a system of checks and balances. In effect, it'd break the US Government's regulatory backbone: any regulatory decision could be challenged not within its statutory limits (or for exceeding its statutory limits), but on the basis of statutory regulation itself being unconstitutional. In effect, it would amount to a government whose regulatory framework is not controlled by the elected branches, but by the sole unelected one.

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I’m sorry, I don’t understand the mechanism of “absolute judicial supremacy”.

The judges are checked and balanced by executive appointment, and legislative confirmation. They also can be impeached by the legislature. Same as it ever was: perhaps this is no longer sufficient, but surely it is not new?

The legislature, setting up this agency as a parallel judiciary/executive that both prosecutes cases and judges them, while also insulated from the presidential oversight, is setting up something accountable only to Congress, and unchecked.

The supremacy here which you advocate here semi-explicitly is Congressional supremacy. It could be argued this is better! It is more directly democratic, after all, and it’s probably more like parliamentary systems. But it’s sure not what the US constitution went for in the eighteenth century, nor has anyone amended it since.

I meant in statutory matters. You're right that the judicial branch would still be checked in other matters, e.g. appointment and confirmation.

I don't deny that the judicial branch has the authority to review these semi-judicial schemes designed by the legislative branch. What I find concerning is the broader conclusion: that the legislative branch may effectively have no regulatory power behind its statutory power, and that all regulatory decisions or adjudications would have to flow through a judicial process instead of the competent agency or department.

In effect, this would both gum up the US's regulatory machinery by making legislative acts themselves toothless. That seems pretty bad to me, and not in keeping with the enumerated powers of each branch.

Even the enforcement powers that are not held in the judiciary should be vested and exercised in the executive branch, should they not? Meaning the legislative branch should not have both legislative and enforcement powers.

I think of the FAA, FDA, and the like as being part of the executive branch, not the legislative. Quick Google seems to back that up (and it matches my model of checks and balances from civics.)

You are correct.

The basic breakdown is this:

Lawmaking: Congress

Law Enforcement: The President and all agencies under him

Adjudication and guarantor of due process: Federal Judiciary

Regulations often get confused with law, but they’re not law so much as either 1) guidance as to how that agency interprets the laws that Congress passes within their enforcement domain and will be proceeding with how they enforce it or 2) orders issued by the President or his cabinet as to how an agency lower in the hierarchy is to proceed.

Where the NLRB is being challenged (as had the FTC and SEC has been recently) is that in addition to authorizing the agencies in question, Congress vested them with some limited amount of adjudication powers related to their enforcement domain which have in turn tried to limit access to Article III judicial review by saying you have to go through their internal court processes first before you can get access to the Federal Judiciary to review the case.

If you think that violates separation of powers, Amazon and SpaceX do too. Theoretically handling everything within a single agency might be more efficient, but that’s to the government’s benefit to the detriment of the rights of Amazon and SpaceX to due process and Judicial oversight of the Executive branch.

>adjudication powers related to their enforcement domain which have in turn tried to limit access to Article III judicial review by saying you have to go through their internal court processes first before you can get access to the Federal Judiciary to review the case.

And does any of these companies include an arbitration clause in any of their contracts?

> but that’s to the government’s benefit to the detriment of the rights of Amazon and SpaceX to due process and Judicial oversight of the Executive branch.

Or to their benefit when the regulations affect their competitors, often to the detriment of the rest of us.

Corporations with enough money to buy regulators and legislators probably should not be entitled to any rights. They should only exist and continue to operate at the pleasure of the electorate.

Corporations are a legal proxy for the owners and management; protecting the rights of these people and pooling their resource are essentially a corporation’s raison d’être. They can’t really do that if they don’t receive the same due process protections, and they are under our legal system entitled to those.

I think the issue is that the Supreme Court has established itself as a parallel legislative branch. It can arbitrarily choose to re-examine the constitutionality of an established thing, and it can also reverse its past opinions.

There should be a time limit beyond which the Supreme Court cannot act. If nobody has challenged the constitutionality of something in 10 or 20 years, it should be implicitly constitutional, and no court opinion should be allowed to change that. Similarly, if the Supreme Court has already made a decision, it should not change it unless the relevant laws or the relevant parts of the constitution have changed. The right way of changing the constitutional status of an established practice should be changing the constitution itself.

You may be interested in https://en.wikipedia.org/wiki/Originalism

> Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.

> Proponents of originalism argue that originalism was the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.

Note that this philosophy -- for better or worse -- runs counter to many modern rulings of courts.

Example of decisions that differed from accepted understanding of the Constitution+Amendments at time of ratification:

* Gideon v Wainwright

* Lemon v Kurtzman

* Roe v Wade

* Obergefell v Hodges

Brown v Board of Education

No, not really.

It was not universally believed that public school segregation was compatible with the 14th Amendment when it was ratified.

Originalists may have something to say about the legal reasoning in the opinion, but Brown's victory itself is not a counterexample.

I've never heard an originalist say anything but that Brown v Board conformed to the original meaning of the 14th amendment.

That's because modern originalists are embarrassed by this, because it starkly reveals how untenable originalism is. But it's a fact. Look up George Wallace some time. Segregation and Jim Crow were the law of the land for 100 years after the 14th amendment was ratified, and many (white) people fought tooth and nail to keep it that way.

Even if Brown vs Board were incompatible with originalism (though, again, no actual originalist says that), I don't see how "it starkly reveals how untenable originalism is."

If you want judicial philosophies that produce only moral outcomes, regardless of law, you don't even need laws.

> no actual originalist says that

That's because originalists are hypocrites.

> I don't see how "it starkly reveals how untenable originalism is."

Because if originalists were not hypocrites, if the actually practiced originalism consistently, they would be calling for the repeal of Brown and Loving and advancing a whole host of other radical ideas that no sane person supports, and everyone would see how intellectually and morally bankrupt they are.

> If you want judicial philosophies that produce only moral outcomes, regardless of law, you don't even need laws.

I want a judicial philosophy that is, at a bare minimum, internally consistent. Originalism as it is actually practiced by self-identified originalists doesn't even meet that basic criterion. Originalists are originalists only when it suits their political agenda.

If a system seems inconsistent, it possible you haven't understood the rules.

Loving is a terrible counterexample. Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant). Not to mention the democratic debate in passing the 14th Amendment, had many legal assertions that the amendment would invalidate such laws.

That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.

> it possible you haven't understood the rules

Yes, that's possible. But the (ostensible) rules of originalism are not exactly rocket science.

> Following the 14th Amendment, there were no anti-miscegenation laws (or they lingered dormant).

That statement has the form of "Santa Claus exists (or the sky is blue)." It's technically not false, but it is not a good-faith argument either. There absolutely were anti-miscegenation laws in 1865; such laws date back to 1691. So there is absolutely no possible originalist justification for Loving. When Loving was decided, anti-miscegenation laws had been on the books continuously since long before the United States even declared independence from Britain.

>That the 14th Amendment was democratically -- if contentiously -- adopted by the people with the express consequence of ending racial discrimination (education, marriage) is a ridiculously easy case to make.

None of that is even remotely close to being true. You are either not arguing in goof faith, or you are profoundly ignorant of history. The passage of the 14th Amendment was followed by 100 years of uncontested Jim Crow laws [2]. Even today the Republican party is hard at work finding new and creative ways to disenfranchise minority voters [3-8, and I could have gone on and on and on].

---

[1] https://en.wikipedia.org/wiki/Interracial_marriage_in_the_Un...

[2] https://en.wikipedia.org/wiki/Jim_Crow_laws

[3] https://news.berkeley.edu/2020/09/29/stacking-the-deck-how-t...

[4] https://www.nytimes.com/2020/11/22/us/politics/trump-republi...

[5] https://www.npr.org/2018/10/23/659784277/republican-voter-su...

[6] https://pbswisconsin.org/news-item/republican-election-tacti...

[7] https://www.brennancenter.org/our-work/research-reports/new-...

[8] https://www.washingtonpost.com/politics/interactive/2021/vot...

Should its own rulings be as binding? Plessy v. Ferguson was decided in 1896.

Of course. The job of the judiciary branch is to establish what the laws actually mean. If people don't like the decisions, the right process is telling the legislative branch to change the laws.

The actual process is to appoint new SCOTUS judges and they just re-interpret the meaning to your liking. No legislation required.

Works out well for the legislature too. Plenty of topics to campaign on. Plenty of chance to grandstand on social media, in hearings, in the regular media. Get re-elected while solving no problems. "Half" the population will always vote for you because the alternative is socialist/fascist. It's a version of the lazy google engineer [1] that makes less money but has potential for national fame and maybe some insider trading.

If the legislature was getting screwed by this arrangement there would be a lot less deadlock in congress and the power of the judicial branch would be relatively less. And somehow this take is somehow less cynical then yours? What a world we live in.

[1] https://www.youtube.com/watch?v=yD2JaAnMMo0

The 5th Circuit court of appeals has already ruled similarly that the SEC's in house courts are unconstitutional, and that Congress can't delegate its legislative/judicial powers to the executive branch in that case under the separation of powers [1], a case that will likely be heard by the SCOTUS. By extension, if that is upheld, the idea is that this same principle could be applied to other executive branch administrative courts like in use at the NLRB.

[1] https://www.winston.com/en/blogs-and-podcasts/government-pro... "Fifth Circuit Holds That SEC’s Use of In-House Courts to Adjudicate Enforcement Actions Is Unconstitutional"

Congress can Overrule the SCOTUS and the Voters can Change Congress and if things get too Conservative Activist in the SCOTUS and the 1%-5% of the wealthy in the US get too much sway then that's only one Depression Away there from moving back the other direction, A La FDR and another New Deal! And just because any Administrative Law Court and agency is set up under the executive branch does not mean that it was not set up by Congress and is not under Congressional Review where the Executive Branch head of any agency gets reviewed by a Congressional Committee on a regular basis. Congress sets up administrative Courts and any Administrative Law Court NLRB/Other Administrative Law Court can have its decisions appealed to a Federal District Court or a DC Circuit panel of Judges and on up to the SCOTUS.

> In effect, it would amount to a government whose regulatory framework is not controlled by the elected branches, but by the sole unelected one.

How is the NRLB "controlled by elected branches" but judicial systems are not? Judges are appointed, not elected - actually, some lower court judges are elected. Same with the NRLB. It's just changing authority from one completely unelected branch of government to another branch that has a mix of elections and appointments.

> actually, some lower court judges are elected

This is going to confuse people.

Not in the Federal government they’re not. All Federal Judges are appointed from the lowest to the highest.

Some States have variations though from fully elected judges to retention elections, effectively turning their judges into politicians too.

The NLRB is an independent agency of the US Government, which means that its power derives from the statutory authority of Congress. That's what makes it controlled by one of the elected branches.

(The argument is not that the NLRB itself is elected, or needs to be. It's whether the judicial branch has the authority to diminish Congress or the Executive's statutory authorities as enumerated under the constitution.)

And judges also enforce the laws passes by Congress (and state and local laws). They're both ultimately enforcing laws passes by Congress.

The tenth amendment constrains congress from regulating outside enumerated powers. Intrastate trade is not an enumerated power. Most applications of the NLRB are tyrannical short-circuits.

First of all, there's no evidence that any of this is intrastate or that Amazon has made a claim on the basis of intrastate trade (this would be a flabbergasting claim for them to make, given that their business is horizontally integrated across 50 states).

Second: the relevant decision here is NLRB v. Jones & Laughlin, which puts it succinctly[1]:

> Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

I'm not aware of a more recent ruling that changes that doctrine.

The clear solution should this stand is to include a Terms of Incorporation when a business is created stipulating that they waive their right to a trial and that any labor disputes will be settled by independent arbitration.

The courts have routinely said you can't sign your rights away. This has gotten muddy with arbitration clauses being sometimes upheld, but for example, you can't sign a contract to entry into slavery for example.

I don't know what courts and what cases you're talking about, but SCOTUS has repeatedly held that binding arbitration agreements override almost all rights.

https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc... (binding arbitration overrides state law)

https://www.nytimes.com/2018/05/21/business/supreme-court-up... (binding arbitration overrides labor protection)

https://www.washingtonpost.com/business/supreme-court-backs-... (binding arbitration overrides consumer protections even in cases of fraudulent deceptive advertising)

Courts have also routinely said that you CAN sign away your rights, i.e., waive them; courts enforce waivers every single day.

The law distinguishes between alienable and unalienable rights. The right to a trial is by common law an unalienable one.

That’s incorrect: Jury-trial waivers are routinely enforced. (California and Georgia won’t enforce advance jury waivers in state courts, as a matter of state law, not federal-constitutional law.) And there's also a thing called a "confession of judgment," which in effect is a waiver of any trial.

What I said is not in fact incorrect, you are confusing waiving a right with alienating it, here's an essay[0] which can sort you out on the distinction.

> Alienating a right is different from exercising it or waiving it in a particular case. A police officer comes to my door and asks to look around my apartment; if I give my permission, I have waived my right. But the next time he comes, he must ask again, and if he is refused he cannot rely on my previous permission.

[0]: https://www.bostonreview.net/forum_response/jeremy-waldron-i...

Waivers aren't necessarily one-time in nature; they can be ongoing.

Example: Many, many contracts explicitly say that any waiver of a contract right is only one-time, so as to rule out an argument by an opposing party that the waiver was continuing.

Example: If you enlist in the military, you waive — on an ongoing basis — your Sixth Amendment right to trial by jury, because the Uniform Code of Military Justice prescribes who can sit as a member of a court-martial [plural: courts-martial].

So in the context we're discussing, calling rights "inalienable" or "unalienable" is not a helpful concept.

There's an enormous difference between waiving rights for a specific (alleged) infraction and carte blanche signing away your rights for anything that might ever happen in the future.

The courts view arbitration as a _forum_ change. The idea is that you're waiving some procedural rights while retaining all substantive rights. This is independent of a jury waiver (although arbitration necessarily requires a jury waiver).

There are some severe problems both in theory and in practice, but that's the rough justification.

At the risk of spamming (I think I've pasted this link several times recently) I've been compiling as much information as possible here. https://arbitrationinformation.org/docs/problems/

A corporation has no right of protection from slavery.

And just imagine if you said it was protected from slavery ... would that mean all corporations are suddenly free of the dictates of their executives, their boards, their shareholders.

Exactly what would this emancipated entity be?

Then what is an NDA if not a contract to waiving rights to speech?

An NDA is a contract, not a law passed by Congress. First five words of the 1st Amendment:

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If you break it, it's a breach of contract, not a criminal act and you didn't break any laws.

I was responding to a comment about courts saying you can't waive rights away in contracts. I posed the NDA as a counter-example.

Yes, but your example doesn’t work here. The bedrock of what we call our free speech rights is more of a prohibition on Congress from passing laws that impede that. Signing such a contract doesn’t contradict the First Amendment.

It does though because its a contract. There are states which enforces, in their contracts, various anti-boycott measures regarding Israel. These are effectively anti-free-speech clauses and they are imposed by the government. But, are allowed because they are agreed to in the terms of the contract.

Aren't corporations incorporated on the state level? Unless I am missing something at least one state would not include this in their terms and companies would flock to that state if they wanted trials.

If they strike down "Chevron", which they might just do this year, that will be what you're referring to.

https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

Amazon's argument can be basically anything that will give the Supreme Court an excuse to accept it...

SCOTUS has to be checked somehow. Make no mistake about it, this is another power grab. This SCOTUS is snatching up Executive and Congressional powers day after day and assigning them unto itself. Do Conservatives really want to live in a world where courts and often ultimately SCOTUS are deciding labor matters, which drugs are safe & efficacious, whether or not it's safe for PFAS to be in your drinking water? Because this, Chevron, and other cases being heard and under review are on the path to do just that.

The fault here is thinking that Republicans operate in good faith or consistently. They don't. They just want to be able to persecute people, and maybe get richer along the way.

No, but it's perfectly fine for lawmakers to make laws setting these standards (ideally with the input of experts). That's how we get local building codes.

The ultimate power to make policy choices should be made by lawmakers who can be voted out. Bureaucrats are too insulated. An individual bureaucrat can't feasibly be fired by either a President or the Congress.

How are bureaucrats insulated, exactly? Congress can change laws whenever they want. Read your history ... when congress first provided the federal government the ability to collect tariffs, they didn't include in the constitution instructions for how the US Coast Guard would work. Hamilton did that, providing regulation for exactly what kind of boats, equipment, employees, and many other details. It would have been unthinkable by the founders that the Supreme Court would be able to vote to disallow the use of a certain kind of boat, or the policing of a specific waterway. These corporations are attempting to get the US Supreme Court to re-litigate the entire 250 years of settled law and regulation. There are no words.

Neither can a Supreme Court judge...

No one is more insulated than SCOTUS, period, end of story. Your point is moot.

> Do Conservatives really want to live in a world where [...]

Yes that is literally what conservatives have always stood for since we developed the term "conservative" to stand for that kind of political stance. Back then it was to preserve the power of the French aristocracy over the rising calls for democracy. Today it's to preserve the power of the wealthy and over that of everyone that has to actually work for a living.

They use different tactics, deflections, and posturing to justify their positions, and are willing to give different kinds of concessions in order to achieve those goals today, but it's been essentially the same overarching theme for a couple hundred years. A well-functioning democracy (in this case, one where employees can organize to negotiate the terms of their employment) is an obstacle to them that they want to clear.

A rather partisan definition. Modern conservatives, like Burke, have made the observation that change is frequently for the worse, and fast change promotes chaos and suffering, such as during the Reign of Terror.

I think the Conservatives primarily want power redistributed to whoever's on their side in any given decade. The particular mechanisms and bureaucracies don't really matter, and it's fine if democratic pillars are destroyed in the process as long as "their guys" ultimately get what they want. The liberals seem more willing to play by the rules and not leave a bunch of collateral damage along the way, which is why they keep losing... every small by-the-book gain is overturned and overpowered tenfold with the next Conservative administration.

FWIW I think there's a difference here between the big-C Conservative politicians and judges who are hopelessly corrupt, vs the run-of-the-mill small-c conservative voters who keep voting for them because of virtue signals (guns, abortion, defense, anti-wokism, whatever). The corruption isn't really a high concern to them, either a positive or negative, as long as they get their values enshrined into political power.

It's not really SCOTUS vs the Executive, it's whatever pathway to power they have available at any given juncture in history. They're very good at pivoting and projecting! Not to say it's admirable, but it's undoubtedly very effective, having captured almost the entirety of the US power structure over the last decade while also striving to make sure their liberal opponents cannot easily reverse those gains. Having so thoroughly captured SCOTUS that they can rewrite/reinterpret the Constitution at will is just the latest move in a long series of such maneuvers over the past decades, skillfully executed.

Should be sent to the states where they belong. Congress and Exec just love creating unelected offices that perpetuate the regimes power without any democratic check. Just expand and consume more and more.

Local is best. Send this kind of thing back to states where it belongs.

It's not judicial supremacy other than the constitutional authority of the courts to interpret the law. Congress still passes the law - if they want it to be interpreted differently, they can just be more specific. In this case especially, it improves checks and balances - judges will check the executives, instead of executive-appointed quasi-judges with obvious incentive issues.

Frankly while I don't think the "originalist" interpretation here is correct, clearly early congresses delegated broad and vague authority to executive in various matters, I actually think it's one of the weaknesses of the original intent of the founders. I assume, given that the early American elite was a relatively small group of people with a lot in common, they didn't foresee the need to micromanage each other in such matters.

Now that executive employs millions of people, I think it's necessary. Like, when CDC can suspend probably the most common private contract in the country (rent) under the delegated authority to fight diseases, this is a step too far for me; and even if you don't think so, what would you think of China-style extreme lockdowns? There needs to be a way to draw the line over vague delegation of power. If IMPROVES checks and balances - judicial can check the executive. Congress can still explicitly give executive the authority it needs and override the judges.

Same for NLRB - pass labor law as the normal laws that the normal judges can interpret.

Next stop, make Commerce Clause unimportant again ;)

Slowly but surely people are starting the realize that the vast majority of the federal government’s regulatory machinery is illegal/unconstitutional.

The ATF is one of the worst examples, but the NLRB here is also wrong.

I understand this will come with a reflexive downvote from many who don’t like the outcome, but this has been warned about for decades: Administrative law isn’t. The executive has no right to act as the police, legislative, and judiciary at the same time.

This is true even if it gives you the outcomes you personally want.

> I understand this will come with a reflexive downvote from many who don’t like the outcome

Are you sure they're not from people who think this sort of preemptive griping looks like a manipulation attempt.

I don't agree or disagree with the parent comment, but what do you mean by manipulation here?

1) post unpopular (sincere) opinion: get downvoted/flagged

2) post unpopular (sincere) opinion, with a disclaimer that you expect to get downvoted: Get accused of being manipulative

3) wrap said unpopular opinion in flowery emotional language “I’m not an X by any means, but I think Y” still get downvoted and flagged

4) pretend/lie: post what the hive mind wants and get upvotes

The system encourages you to lie, in fact it rewards you for betraying your convictions and just posting what you think others want to hear. Your post is accusing me (subtly) of posting in bad faith, when in fact bad faith posting is what would make my karma go up.

Yeah that's why the Trump court loves it. It's the federalist society long game.

Bust up federal regulatory authority -> force states into a regulatory race-to-the-bottom to attract business -> profit.

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