Supreme Court Declines Case Questioning NLRB Authority as Trump Nominates New General Counsel

The Supreme Court declined to take a case that could have limited court deference to the National Labor Relations Board’s (NLRB) authority. Meanwhile, President Trump nominated Crystal Casey, a partner at management-side law firm Morgan Lewis, to be the Board’s next General Counsel.

NLRB dodges a deference bullet: Last year’s Supreme Court decision in Loper Bright eliminated longstanding federal court deference (Chevron deference) to agency interpretations of ambiguous statutes – a significant blow to agency power that allows federal courts to more easily invalidate agency actions.

• However, whether that decision applied to the NLRB remains an open question, as the agency has long received Supreme Court-approved judicial deference independent of Chevron – and therefore potentially independent of Loper Bright.

• The Sixth Circuit Court of Appeals has ruled that Loper Bright does in fact apply, but other circuits and districts have either continued to defer to the NLRB or ignored the issue entirely in upholding Board decisions.

• In declining to take up a case squarely on this issue, the Supreme Court has given federal judges (at least outside of the Sixth Circuit) the green light to continue to defer to the NLRB as an exception to Loper Bright – for now.

• Other circuit courts may follow the Sixth Circuit’s lead, and the Supreme Court could address the issue in the future. For now, however, the NLRB has avoided further restrictions on its authority.

The heat is still on: The NLRB nevertheless remains the subject of a comprehensive legal campaign to eliminate its adjudicatory power, its independence from the President, and potentially its entire existence. The results of that campaign should shake out within the next few years, defining federal labor policymaking for years to come.

Crystal Carey nominated for General Counsel: President Trump nominated the former Morgan Lewis partner to replace the terminated Biden-era, employer-unfriendly, Jennifer Abruzzo. Ms. Carey spent eight years as a lawyer for the NLRB before joining Morgan Lewis, where she developed a track record of defending employers in labor relations disputes.

• Ms. Carey has also been vocal in her belief that the Biden-era Board overstepped its authority and unlawfully stripped employers of certain rights.

• The Teamsters publicly opposed the nomination – a notable rebuke for the union given the perception that the union has the President’s ear on labor issues.

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