Nicholas Ohanesian (Social Security Administration) has posted Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board on SSRN. Here is the abstract:
A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the what the world would look like without administrative deference and at the same time serve as a cautionary tale about how courts will behave when unrestrained. Labor law and the judicial treatment of labor unions provides a particularly vivid illustration in this regard. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. This article will show how the history of the Courts and Congress with respect to labor unions should support continuing administrative deference to the National Labor Relations Board.
In the area of labor law the Supreme Court has a long history of engaging in statutory interpretation free of any constraints with objective evidence of the Court getting it wrong. This objective evidence comes in the form of statutory responses to Supreme Court interpretations of various statutes. Part one of this essay will trace the history of statutory interpretation of cases involving labor unions and the various Congressional responses. Part two will look at how Congress applied these lessons dealing with labor unions in light of Supreme Court decisions. Part three show how these lessons should apply when evaluating administrative deference as applied to the National Labor Relations Board (NLRB).
