All this explains why Judge Laurie Michelson, a federal judge in Michigan, earlier this month denied a preliminary injunction request against the NLRB brought on grounds similar to those in these other cases—without even mentioning Jarkesy. Instead she cited a Supreme Court decision from 1935, Humphrey’s Executor v. U.S., that barred President Franklin Roosevelt from removing William Humphrey, an appointee of his Republican predecessor, Herbert Hoover, from the Federal Trade Commission. Four months after FDR fired Humphrey, the deposed commissioner very obligingly had a stroke and died. But before Humphrey departed this vale of tears he filed suit to regain his job. His heirs kept the case going and recovered his back pay.
The antiregulatory right would have you believe that administrative law judges are some novel regulatory apparatus, but the NLRB has had them since the 1930s, when they were called “trial examiners.” They’ve enjoyed civil service protection since 1940. Only the term “administrative law judges” is (somewhat) new; according to Andrew Strom, an associate general counsel at the SEIU, it dates to the 1970s.
I would gladly go back to calling administrative law judges “trial examiners” if I thought it would appease reactionary warriors against the administrative state (who themselves have been around since the late 1940s but were never taken seriously much before now). But of course, this crowd won’t rest until there are no regulatory agencies left. Donald Trump’s got their back, and even if he loses in November his Supreme Court majority does, too. That can only start to change if Kamala Harris is elected president. If you want American businesses to romp free of supervision, all in the name of “populism,” then Trump’s your guy. Otherwise, please vote Democratic.
