NYU Law professor Samuel Estreicher examines how recent Supreme Court decisions expanding presidential removal power threaten the constitutional structure of the National Labor Relations Board, tracing the evolution from Humphrey’s Executor (which upheld independent agencies) through Morrison v. Olson, Free Enterprise Fund, and Seila Law. Professor Estreicher argues that while the NLRB’s current structure faces serious constitutional challenges under the Court’s “unitary executive” jurisprudence, the agency might survive either through judicial recognition that it does not exercise “substantial executive power” or through congressional restructuring to separate its adjudicatory functions from its enforcement powers.
Cornell Law professor Michael C. Dorf comments on the so-called “unitary executive theory” and explains why it seems to form the basis for the extreme positions of conservative Justices on the U.S. Supreme Court. Professor Dorf argues that the conservative Justices may prefer to pursue their ideological goal of undercutting regulation via the dubious unitary executive theory rather than originalism, further undercutting the administrative state.
