Mher Mkrtchian
91 Geo. Wash. L. Rev. 1330
The National Labor Relations Board (“NLRB”) can no longer be described as an independent agency. The structural separation of the agency’s adjudicative and prosecutorial powers under the Taft-Hartley Amendments to the Wagner Act effectively permits the General Counsel to control a lion’s share of the agency’s policymaking discretion. The Trump administration’s NLRB is a prime but cautionary example of the immense power wielded by the General Counsel. This development comes alongside judicial decisions that signal a resurgence of separation of powers formalism. The current jurisprudential landscape suggests that the Supreme Court would likely find that the General Counsel is a principal officer who serves at the pleasure of the President. To limit the prospect of total presidential capture of what has been described as an “independent agency,” this Essay offers two legislative solutions for Congress’s consideration. Both solutions closely track the agency models endorsed by the Supreme Court in Free Enterprise Fund v. Public Company Accounting Board and Morrison v. Olson.
