Separation of Powers and the Labor Act: 3. Judicial Courts vs. Administrative Courts
SEPTEMBER 01, 1968 by SYLVESTER PETRO
Dr. Petro is Professor of Law at New York University School of Law. He has written several books, including The Labor Policy of the Free Society (¹957) and Power Unlimited: The Corruption of Union Leadership (¹959), and is a noted lecturer and contributor to magazines.
The institutional setting of each member of the National Labor Relations Board is a five-year appointment to what is known as a quasi-judicial tribunal, located by law, fact, and tradition in the executive branch of government. Appointment is by the President, with the advice and consent of the Senate. The duties are essentially judicial in character. One hears varying opinions, concerning whether or not the Board members should conceive of themselves as essentially policy-making participants in any current Administration, on the one hand, or judges on the other. The "Eisenhower Board" avowed and to some extent adopted a judicial stance; the "Roosevelt-Truman-Kennedy-Johnson" Boards, while still not entirely disavowing a judicial role, have on the whole adopted an essentially policy-making stance conformable to that of the Administration in power.
Federal judges also are appointed by the President, with the advice and consent of the Senate. To this extent, the institutional setting of Federal judges and NLRB members is the same. But to this extent alone. No Federal judge has ever asserted that his job is to effectuate the policies of a given executive administration. On the contrary, when Federal judges discuss the question, their uniform affirmation is one of obedience to the Constitution and to the Congressional intent expressed in valid legislation.
The Supreme Court of the United States has been accused of policy-making ambitions, both currently and in the past. Whether or not you or I credit such accusations is not material to the present inquiry. For no one can validly accuse the Supreme Court of a peculiar policy bias conceived and pursued essentially because that policy is favored by the incumbent administration.
Supreme Court justices have been a constant source of surprise to the presidents who appointed them. Justice Holmes’s contempt for antitrust law and policy — a shock to the President who appointed him — is only one example of a number of such cases. It is incorrect to believe that the present Supreme Court, "activist" though it may well be called, is acting the way it is because it believes that the present or any past Administration wished it to act in that particular way.
A Case for Tenure
We come, then, to the first of two sharp distinctions between membership in the NLRB and Federal judicial office: the five-year terms of the former and the life tenure of the latter. The five-year term of office goes far toward insuring allegiance in each NLRB member to the Administration which appointed him, to the one with power to re-appoint him, or to both. There is no need to oversimplify the situation. Tradition may call for a "pro-union" Administration to appoint one or two "pro-employer" types to the Board. In such a case, the "pro-employer" Board member would be unfaithful to the Administration if he abandoned his former stance as a means of insuring reappointment. In order to keep the "bipartisan" show going, he must maintain some semblance of the penchant which got him his appointment in the first place.
If a Board member wishes reappointment at the end of his five-year term, he must satisfy the Administration then in power that he can be relied upon to act in accordance with that Administration’s labor-policy views, subject to the "bipartisan" tradition. There is nothing sinister and nothing surprising about this. On the contrary, a given Administration has no basis for its appointments to the NLRB other than furtherance of its policies and political ambitions or payment of its political debts. Expecting an Administration which has gained power with the assistance of trade unions to appoint a Board which would deal as rigorously with unions as the law requires — that is as realistic as it would be to run for office on a platform which the voters demonstrably oppose.
The Political Process
It is true that a Board member is always in a position to "betray" the President who appointed him. The betrayal may even win him reappointment from a succeeding President who approves his new position. But this is of little significance. The fact remains that a majority of the Board will always be governed sooner or later by the political position of the Administration in power; five-year terms expire; then the Administration’s labor policies reflect themselves in the new appointments. President Kennedy had a majority within a year or so of his accession.
It is possible that the Administration’s labor policies will coincide precisely with those of the Congress which passed the legislation in question. Possible, but not likely. As time passes, the likelihood diminishes. An Act passed by Congress in 1947 is not likely to express exactly the policies that an Administration in 1967, or 1987, finds suited to its political and social objectives.
But even when Administration objectives coincide exactly with the legislatively expressed policies, it will be the Administration which controls the action of the quasi-judicial executive agency, not the legislation. It is important to bear this in mind because results in particular cases will be affected. Thus, though there may be a general policy coincidence between the legislation and the Administration, the Administration may still feel that in a particular case, for one reason or another, it is desirable that the impact of the legislation be softened, hardened, or redirected in some other way.
Plotting a Course
Our present structure of "administrative law" leaves plenty of room for this sort of thing. A busy General Counsel has to pick and choose the cases which he will prosecute. He cannot prosecute them all. Certainly he need not prosecute them all with equal vigor and persistence and acumen. After all, the main thing is to keep the staff busy. If it is kept busy in spite of the fact that one particular case is not prosecuted at all, or that it is put "on the back burner," what great harm has been done?
Or suppose the case is prosecuted so that it gets before the Board. Courts may not substitute their conclusions for those of the Board where there is substantial evidence in the record considered as a whole which supports the Board’s finding. Not uncommonly, the record as a whole will sustain contrary findings. In such a case, the reviewing court, if faithful to this basic principle of "administrative law," may not vacate the Board finding, no matter which way it goes. Hence, it is perfectly permissible for the Board to go either way. And the judge who keeps faith with the law — as most Federal judges do — must enforce the Board order in either case. All this being true, the Board itself is in a position to do exactly what the General Counsel does in picking the cases to prosecute. It is in a position, in short, to make an exception whenever doing so is of great importance to the Administration of which it considers itself a part.
Proper Judicial Procedure
I am no muckraker and do not wish to exaggerate the incidence of such conduct on the part of either the Board or its General Counsel. In any event, it is enough that such possibilities exist, even if they have never actually occurred. Indeed, the analysis will proceed more disinterestedly and more expeditiously if it is realized that there is no necessity to establish that this sort of thing has or has not happened in any particular case.
For the major point in our inquiry is that nothing of the kind can reasonably be expected where judicial power is confined to men with life tenure who have been appointed to the insulated judicial department of government. If the Supreme Court is indeed an activist, consciously policy-making agency, rather than a genuine court of law, it is so because that is the way it conceives its function. If there is a flaw in the Court’s position, that flaw is not a product of any defect in the Constitution, in the principle of the separation of powers, or in the institution of life tenure for judicial officers. It is a flaw, instead, in the conception of judicial office held by individual members of the Court. It is a product of their failure to understand the functional inadequacy of the courtroom as a political, policy-making institution, and the functional superiority of the courtroom as an institution in which justice under law may be distributed among particular parties litigant on the basis of minute consideration of the particular facts and of the legal arguments which the adversary system is bound in individual cases to bring to the attention of the judges.
The Court May Err
If misunderstanding and ineffective corrective measures are to be avoided, it is necessary to understand, as well as we can, what motivates the Supreme Court to take an activist, policy-making position. Of course, it is always possible to jump to the conclusion that the Court does not care about the Constitution; that the justices are arrogantly determined to follow their own will; that they are engaged in a completely extralegal and extra constitutional struggle for supreme power in the government of the United States. This is not only a possible position; in my opinion, there are occasions upon which it seems the most plausible explanation of certain decisions of the Court. As an example, I would cite the recent (1967) decision of a bare majority of the Court in the National Woodwork case."
Mr. Justice Brennan wrote the opinion of the court for himself and Justices Warren, White, and Fortas. A majority was made by the special concurrence of Justice Harlan in the Brennan decision. Justices Black, Douglas, and Clark concurred in a dissenting opinion by Justice Stewart. With these dissenting justices I have concluded that Justice Brennan’s opinion so blatantly flouted the clear meaning and intent of the statutory provision involved that the only possible explanation was a determination by the majority to challenge Congress’s policy-making supremacy under the Constitution.’" In my view, Justice Stewart was correct in calling Justice Brennan’s opinion "a protracted review of legislative and decisional history in an effort to show that the clear words of the statute should be disregarded…"4²
Not Structural Defects
However, I would remind the reader here of two points. The first is that Justice Brennan could not possibly have been meaning to curry favor with the Administration which appointed him; he was an Eisenhower appointee. Nor could he have been motivated by a desire to promote his own career by currying favor with the present Adminstration. There is nothing that the current Administration can do either to hurt or help him on the Court.
The second point to remember is that, no matter how blatantly a life-tenure justice may seem to misconstrue legislation, there is always, in the end, an objectively insoluble problem concerning motivation. We may eliminate economic insecurity where the judge has life-tenure and the position pays him enough to preclude ambition. We may eliminate vulgar corruption, owing to the traditions and the high dignity of the Court. We may eliminate light frivolity, for there is plenty of reason to believe that the justices take their role seriously. But when these and other such motivating factors are eliminated, it is still not possible for the external observer-analyst to be sure about the causal factor or factors which actually produced the judicial opinion in question. It could have been so trivial a thing as stupidity, a law clerk who did a fragmentary job of research among the authorities or in the record of the case, or an appealing argument on the wrong side, or simply the hard case which makes bad law.
An Understandable Confusion
It is best, then, to operate on the assumption that, however egregiously the justices may act in particular cases, they nevertheless perform their duties in good faith — by which I mean, in accordance with their conception of their role on the Court. Often, we must remind ourselves, the Court interprets Congress’s statutes well and faithfully, reversing the NLRB in the process. Often, owing to the inherent ambiguities of language or to sloppy or evasive work in Congress, an interpretation can go either way, and the critic cannot complain with any great force merely because the Court has adopted an alternative which he would have rejected.
Moreover, with law professors in a state of great confusion over the judicial role with respect to statutory interpretation, it is easy to understand that at least some of the justices will share their confusion. A professor of law has recently published the following statement:
The myth that the courts only follow the intent of Congress inhibits most judges from examining solutions worked out in other countries, even when Congress had no intent or when that intent was not to solve but to avoid the problem. Thus, the Court in the Lockout Cases condemned the NLRB for "unauthorized assumption… of major policy decisions properly made by Congress," and then fabricated a Congressional intent to support its own policy decision. The Court could have gained greater insight into the problem and made a more responsible decision if it had examined the alternative solutions from other countries; but that would require an open admission that the Court was making the policy decision which Congress had refused to make.43
The Charges Re-examined
The foregoing comment may be broken down as follows:
1. Courts do not merely follow the will of Congress.
2. They are policy-makers.
3. It is proper that they make policy.
4. Congress did not express a policy on the legality of collective-bargaining lockouts.
5. The Supreme Court made its own policies in the Lockout Cases, but it did so inadequately because it was afraid to admit that it was making policy which Congress had declined to make.
The first two statements are inaccurate, though not completely incorrect. The vast preponderance of Federal judges other than Supreme-Court Justices not only say that they are bound by Congressionally declared policies but act in accordance with that declaration, subject to three qualifications: (a) sometimes statutory ambiguity or other deficiencies require the court to contribute something more than mere interpretation to the decision which it must reach; (b) at times a Federal judge does play fast and loose with legal doctrine and statutory interpretation; (c) sometimes the court must follow an interpretation at variance with the plain meaning of the statute because the Supreme Court has already imposed such a variant. The latter is peculiarly relevant in labor law. A large proportion of Circuit-Court affirmances of NLRB decisions is owing to the fact that the Supreme Court has so often endorsed the NLRB’s revisions of the Labor Act. After the Court has done so, the Circuit Courts of Appeals have no real alternative but to go and do likewise.
The third statement is not only incorrect, but seriously so. Aside from "gap-filling" and selection among alternatives where legislation is ambiguous, the Federal courts, including the Supreme Court, act improperly when they make policy. They act improperly from all relevant points of view: from the point of view of personal morality; from the point of view of Constitutional legitimacy; and from the point of view of functional-practicality. All Federal judges swear to uphold the Constitution as a prerequisite to their office. The Constitution (as well as the basic concept of representative government which underlies it) states that:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
For reasons already stated, no court of law can represent the nation adequately; confined to a particular dispute in the courtroom setting, broad policy-making by judges is bound to be abortive. The nation, the law, multitudes of persons, and the future of representative government in the United States — all are in a state of crisis today owing in no small part to the Supreme Court’s assumption of policy-making and even constitution-making powers over the past thirty years or so.
The fourth and fifth statements are incorrect. Congress did not say in so many words that the collective-bargaining lockout was lawful. But such a lockout was plainly lawful at common law, and there was no language or no policy in the National Labor Relations Act from which an inference of Congressional determination to change the common law could properly or logically be drawn. On the contrary, there was much Congressional language from which the Court could — and did — infer that Congress intended to preserve the legality of the collective-bargaining (as contrasted to the coercive anti-union) lockout. The Supreme-Court decisions in the Lockout Cases were manifestly correct interpretations and applications of Congressional intent. Moreover, to suggest that the Court should have referred to European experience in order to determine how to govern Americans demonstrates a doubly peculiar lack of understanding of the system of government of the United States. It fails to understand not only what representative government means, but also what the constituency iswhose views and preferences are to be represented by government and reflected in law.
I have discussed the foregoing comment on judicial-policy-making power at some length because of the help it affords in understanding the policy-making penchant of the Supreme Court. The comment does not represent the aberrant view of a single law-school professor. It represents, to my personal knowledge, a substantial body of opinion among law teachers, and therefore of necessity among law students, practitioners, and even judges. It is really ingrained enough to be called an unreconciled contradiction in our legal tradition — one which can be removed only by spreading a better understanding of the meaning and the requirements of representative government and of the Constitution.
We have come now to the second sharp distinction between the institutional framework of the Federal judiciary and that of quasi-judicial administrative tribunals: the history and the traditions within which they respectively operate.
It would be a mistake to assume that an administrative agency such as the NLRB is something new, without history or tradition.
The mistake is understandable because that history and that tradition are hidden and forgotten. The history and tradition which the NLRB carries forward today was rejected in the middle of the seventeenth century in England. It was rejected on the basis of experience so repugnant, and so tragic for men who prized law and decency, that it could not be revived till consciousness of its terrible consequences had dimmed with the passage of more than 250 years.
I refer, of course, to the abolition in the seventeenth century of such administrative tribunals as the Star Chamber and the Court of High Commission. Those agencies, like the NLRB, were rationalized as "expert" tribunals which could be relied upon to do "speedy justice," unhampered by the "technicalities" of the law courts, and obedient to the executive policies which parliament and the courts of law were frustrating.
The constitutional revolution which took place over a period of more than forty years in England during the seventeenth century had two significant results, both relevant to our present inquiry: (1) the assertion of parliamentary policy-making supremacy, involving a radical reduction in the power of the executive; (2) the creation of a judiciary insulated from political pressures by life tenure in office, involving the abolition of all such quasi-judicial agencies as the Star Chamber.
The English Influence
Two great legal scholars — Sir Henry Sumner Maine and Professor William W. Crosskey — have demonstrated both broadly and in detail that the main features of the Constitution of the United States were the direct product of the English experience during the seventeenth century." It is impossible to read the Constitution against the background of that experience and come to any other rational conclusion. Article I gives all legislative policy-making powers to Congress; Article III gives the whole judicial power of the United States to life-tenure judges.
The result was to interrupt the history and the traditions of administrative courts. We had none for a long time, and even after the Interstate Commerce Commission was created at the end of the nineteenth century, we still had little "administrative law" till the thirties. Few lawyers will now remember the names of the men who served in the Star Chamber or the Court of High Commission, if indeed those names were ever widely known. But neither will many lawyers remember the names of ICC or FTC or CAB or NLRB members.
It seems to be in the nature of an administrative court to operate anonymously. Even today, NLRB decisions emerge anonymously. One is tempted to infer a lack of pride in or perhaps a hesitancy to assume responsibility for the NLRB’s product. And the inference is strengthened by the fact that normally only dissenting or specially concurring opinions are signed by NLRB members.
A Shining History of Intellectual and Moral Courage
The history and traditions of the Federal judiciary are strikingly different. They trace directly back in an unbroken line to the great English chancellors and judges, even beyond the time when life tenure was accorded judges. It is a history full of shining examples of intellectual and moral courage — of judges who time after time vindicated the maxim, "Let justice be done though the heavens fall." Roscoe Pound has described how the king’s judges defied the king’s will even though they served at their king’s pleasure.45 Their names are known; even in the Year Books, the judges are identified. One does not need to be a legal scholar in order to recognize such names as Coke, Holt, and Mansfield, or Marshall, Story, Shaw, Field, Holmes, Brandeis, Cardozo, Jackson.
It is a serious shortcoming — a failure to grasp one of the powerful determinants of human action — to underrate the influence of such a tradition, especially in the law, where a judge’s nose is rubbed willy-nilly so often in-what his predecessors have said or done.
That thinnest, most unperceptive, and most inaccurately designated of all schools of legal thought — "legal realism" — holds that judges not only do but should decide cases in accordance with their own inner intimations of immortality. But the "legal realist" does not explain how a person trained in the law, acting in a living tradition, thinking, as he must, in the categories of thought which prevail in the law, can possibly hand down decisions outside that tradition and those categories.
Asking a career, life-tenure judge to act in the fashion that "legal realism" suggests is the same as asking a person to write without the alphabet. The only thing produced is an unintelligible mess, and few judges are willing to befoul their tradition and the law books that way. And so most judges, especially those for whom judging is a lifetime career, tend after a while to settle themselves down into carrying on the great tradition of obedience to law as opposed to personal preference or political expediency.
Continuity, consistency, predictability — these are the values which most Federal judges prize and which they try to achieve. In contrast, the field of "administrative law" presents a spectacle of violent change in the "law" with each change of Administration. Judges think that the function of law is to help the community as a whole by giving a firm standard to which persons in general may adjust their conduct without fear of finding, after they have acted on one legal assumption, that the law has been changed. Administrative agencies consider "law" only another tool with which to advance the interests and policies of the Administration in power.
I remind the reader of the vicious cunning illustrated by the Bryant Chucking Grinder case.46 The "Eisenhower Board" had held that unfair practice charges should not be allowed to relate back to pre-election conduct. The rule made good sense. A party should not consent to an election when he means to challenge it thereafter because of pre-election conduct. However, the "Kennedy Board" found the rule unacceptable and simply reversed it. In so doing, it laid the basis for giving unions exclusive bargaining status and for imposing the duty to bargain on employers in hundreds of cases — in spite of the fact that the employees in those cases had, in secret-ballot elections, rejected collective bargaining.
Courts do make and change law – to some extent. Unfortunately, as we have seen, they sometimes do those things even when the existing law is clear enough so that they are not required to do so by the necessity of deciding the case before them. Contrary to academicians of the kind I have mentioned above, there is no justification for such conduct. On the other hand, it is well to understand two things about it. First, the phenomenon is confined to relatively few judges, mainly on the Supreme Court. Second, it creates a power struggle between those few judges, on one side, and Congress, on the other; it does not necessarily align the judicial power with the executive power; and thus does not create so dangerous a threat to the principle of the separation of powers and to congressional policy-making supremacy as does the grant of judicial power to an executive agency.
The Weakest Link
Judicial power is the "weakest" of the three aspects of governmental power. It controls by itself neither men, nor guns, nor money, nor votes. If Congress did not keep itself so busy bootlessly trying to legislate this nation into a paradisial state, it could without too much trouble keep the Supreme Court vividly aware of its inherent weakness. If, for just a few years, Congress would police Supreme-Court decisions — instantly responding to so blatant an example of statutory misconstruction as occurred in National Woodwork by a suitable statutory amendment — even the dullest or the most arrogant Supreme Court justice would learn that he was not commissioned by the Constitution with the supreme and autocratic power which some of the justices have arrogated to themselves.
That would be a troublesome and an annoying job for Congress; an unnecessary one, too, since the Justices ought to know better, even if the professoria do not. But at least it is practical and possible for Congress to control the Supreme Court. It is a small body, turning out a limited number of decisions. In the last resort, Congress could simply take away much of its appellate jurisdiction without doing irreparable injury to the nation.
In contrast, the job of policing and controlling the activities of administrative tribunals is very nearly hopeless. There are so many. They do so many things. They grind out so many decisions. Their activities are as often off the record as on. The confusion between their powers and those of the reviewing courts creates an infinity of problems in itself. Allocating responsibility is extremely difficult. For example, the NLRB constantly contends that it must be doing a good job because the Courts of Appeals enforce a vast preponderance of Board orders. But the Courts of Appeals must enforce most Board orders because the substantial evidence rule ties their hands; moreover, by now, with the Supreme Court’s support, the Board has the bulk of the substantive law under the statute in a posture such that it can write decisions pretty much at will, no matter what the facts are.
Congress’s policy-making legislative supremacy, and with it this country’s hope for an effectively operating representative government, is endangered by the merging of judicial power into such executive agencies as the National Labor Relations Board.
Delegating judicial power to an administrative agency is both unconstitutional and impractical. It is unconstitutional because the Constitution confines the judicial power of the United States to an independent judiciary composed of life-tenure incumbents. It is impractical because competent judging cannot be expected from limited-tenure political appointees who operate outside the long and sustained judicial tradition of subservience to law rather than to political exigency. The principal argument in favor of specialized quasi-judicial administrative tribunals is based upon an erroneous and deceptive conception of "expertise." The relevant "expertise" must be in the art of judging. The real experts in that art are the judges who sit on courts of general jurisdiction.
Creating specialized quasi-judicial administrative courts, subject to fragmentary and limited judicial review, produces neither expert nor expeditious judicial administration. It produces, instead, uncontrollable confusion. Out of that confusion, the executive branch emerges with precisely the concentration of governmental power which the outstanding achievement of the United States Constitution — the principle of separation of powers — was designed to disperse. As Thomas Hobbes said, liberty is fragmented power. The result today of reconcentrating power is a badly governed country. Tomorrow, if history is any guide, we shall have tyranny. The process has gone far already in the field of labor policy. Although these matters are hard to quantify with any precision, in my judgment the Labor Board has managed to gather a preponderance of the policy-making power in its hands, together with executive and judicial power. Congress’s will to assert its Constitutional power must not be weakened by doubts of its functional and representational superiority as legislator and policy-maker for the nation. It is nonsense to hold that the President or his bureaucracy better represent the nation. It is equal nonsense to believe that courts or administrative agencies can isolate the consensus of the community into a set of coherent basic policies better than Congress can.
If Congress wishes to escape the fate of the British House of Lords and to preserve the representative character of this government, it must respect and enforce the principle of the separation of powers. This means that Congress must repeal its delegation of judicial power to the National Labor Relations Board and revest that power in the Federal courts.
Problems will remain. Some judicial incumbents are unable to distinguish judicial activity from legislative activity even when the two are clearly distinguishable, let alone when, as often happens, it is difficult to distinguish them. Moreover, some judicial incumbents believe that judicial power is tantamount to legislative power, at least so long as they can get away with it. Ultimately, however, it is a simpler matter for Congress to correct such judicial mistakes and to subdue such power-lust in judges than it is to maintain its position against a multi-powered executive.
So, even if Congress, respecting the Constitution, should confine judicial power to the Federal judges, it will have to keep a wary eye on its storehouse of legislative power. Raids by the other branches can be expected. But this is inherent in the nature of men and things. It is not only for liberty that the price is eternal vigilance.
40 386 U.S. 612 (1967). I have discussed this case at length in 32 Law and Contemp. Prob. 319 (1967).
4¹ Ibid. at pages 337 et seq.
42 386 U.S. at 650.
43 Summers, American and European Labor Law: The Use and Usefulness of Foreign Experience, 15 Buffalo L. Rev. 210, 218 (1966).
44 Cf. Maine, Popular Government 196 et seq. (1885); 1 Crosskey, Politics and the Constitution in the History of the United States 414-68 (1953).
45 Pound, The Development of Constitutional Guarantees of Liberty 16, 23, 25, 32, 40 (1957).
46 See the text, supra, at note 20.
The Rule of Law
The end of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists (For who could be free when every other man’s humour might domineer over him?) But a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be the subject of the arbitrary will of another, but freely follow his own.
JOHN LOCKE, Second Treatise