As judges avoid precedent labor board loses edge in court review

Anne Lofaso, a professor in the University of Cincinnati College of Law, spoke with the online publication Bloomberg Law about recent appellate court rulings that are ignoring U.S. Supreme Court precedent privileging the National Labor Relations Board’s stance on labor law in deciding cases.

Bloomberg Law reported that five circuit courts have considered how Loper Bright Enterprises v. Raimondo affects their assessment of the National Labor Relations Board’s legal interpretations after the Supreme Court handed down a landmark ruling that ended deference to agencies’ interpretations of vague laws.

One of those circuit courts—the US Court of Appeals for the Third Circuit—acknowledged Supreme Court case law that predates the now-defunct Chevron doctrine, such as the high court’s 1979 decision holding that the NLRB’s interpretation of federal labor law should be enforced as long as it’s “reasonably defensible.”

Lofaso told Bloomberg Law that some of the circuit courts that have yet to opine on Loper Bright’s impact on NLRB review will likely make good-faith attempts to wrestle with the Supreme Court precedent on board-specific deference. 

But she said she’s not surprised that some of the courts have skipped over that case law en route to saying Loper Bright eliminated deference to the board’s legal interpretations.

Lofaso told Bloomberg Law that the same judges who are focused on retaking power to interpret laws from agencies also don’t like the New Deal, which birthed the NLRB and other parts of the administrative state.

“But it would be better if they didn’t pretend the cases didn’t exist,” she added.

Lofaso, a former attorney for the NLRB, teaches courses in labor law, employment law and constitutional law at UC Law.

Read the full story in Bloomberg Law online.

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