The Supreme Court will rule for Starbucks and against the administrative state

Under the Biden administration, with its overtly pro-union bias, the National Labor Relations Board is the fact-finder, the judge, and the jury in labor disputes subject to the National Labor Relations Act of 1935.

In oral arguments before the U.S. Supreme Court in the Starbucks v. McKinney case on Tuesday, a majority of the Supreme Court signaled that they will further roll back the power of the administrative state. The justices implied that they will rule that an administrative agency must have clear legislative language to support a determination they make.

This bears relevance because, in February 2022, seven employees at a Memphis, Tennessee, Starbucks shop were fired for violating company policy by inviting a television crew into the shop where they worked. The employees were publicizing their efforts to unionize. The NLRB went to court to get a preliminary injunction ordering that Starbucks rehire the employees. Under U.S. law, a preliminary injunction is an extraordinary remedy only to be issued when there is substantial reason to believe that the party harmed, in this case the employees, will win on the merits.

But under the Biden administration’s NLRB, the remedy of preliminary injunction in favor of labor is typically granted as a matter of right and de facto becomes permanent because legal disputes before the NLRB are protracted, lasting for years.

Except that Starbucks decided to challenge the legal standard for issuing a preliminary injunction. 

Section 10(j) of the National Labor Relations Act authorizes the NLRB to seek preliminary injunctive relief in federal court to remedy an alleged unfair labor practice while the merits of the underlying case are being determined. In the current case, Starbucks wants the relevant legal analysis for issuing injunctive relief to involve a stringent four-step test.

Three appeals courts issue injunctive relief when first, there is reasonable cause to believe that an unfair labor practice has occurred, and second, when injunctive relief is just and proper. But four appeals courts use a four-step process. First, will the NLRB win on the merits? Second, would denying relief cause irreparable harm? Third, what is the balance of interest? And fourth, would an injunction serve the public interest?

Starbucks argues for the four-step test. In truth, however, the NLRB wins almost always because the NLRB is the fact-finder, the judge, and the jury. But that is not justice. That is unconstitutional. Under current administrative law, due process is denied and constitutional property rights are often transgressed. I believe that the court led by Chief Justice John Roberts will determine that the four-step test must be used in determining whether a preliminary injunction is warranted.

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By so ruling, the court will further roll back the power of the administrative state. The court will rule that Congress must state in plain language when it delegates to an administrative agency the right to be fact-finder, judge, and jury. The plain language of the National Labor Relations Act does not grant that authority. The court will thus further restore balance to the U.S. system of government where Congress legislates, and the executive branch only executes laws passed by Congress. 

The president, through administrative agencies, does not make law. He must now be taught as much.

James Rogan is a former U.S. foreign service officer who later worked in finance and law for 30 years. He writes a daily note.