|
RCBJ-Audible (Listen For Free)
 |
Can States Step In Where Federal Agencies Cease To Function?
By: Robert G. Brody and Matthew Chiota
Since January 2025, the National Labor Relations Board (NLRB) has been operating without a quorum. The result is a growing legal and constitutional crisis that is beginning to test the limits of federal preemption, state authority, and administrative law in the United States.
In July, Trump nominated Scott Mayer, chief labor counsel for Boeing, and James Murphy, a former NLRB lawyer to fill two of the vacant seats on the Board. The nominees will be examined by the Senate and will be confirmed if a majority of the Senate approves of the nominations. If both nominees are confirmed, the NLRB will once again have quorum.
The Importance of a Quorum at the NLRB
The National Labor Relations Board is the federal agency charged with enforcing the National Labor Relations Act (NLRA), which governs collective bargaining, collective activity, and labor relations in the private sector. Among its core responsibilities are adjudicating appeals from administrative law judges in unfair labor practice cases, certifying union elections, issuing or revoking labor regulations, and seeking enforcement or dismissal of subpoenas through the federal court system.
However, the NLRA mandates that the Board must consist of at least three Senate-confirmed members to act. With only one member, the NLRB cannot act in its official adjudicatory or policymaking capacity. This restriction has rendered the Board unable to perform some of its most central functions.
In particular, the NLRB cannot issue binding decisions in labor disputes that reach the national level. It also cannot promulgate or rescind regulations that interpret federal labor law, nor can it take action in federal court to enforce or quash subpoenas. These limitations affect not only employers and unions but also employees whose rights under the NLRA may now be delayed or denied for an indefinite period.
Regional Offices Still Functioning
Despite the vacuum at the national level, the NLRB’s regional offices remain operational. These offices are responsible for investigating unfair labor practice charges, processing representation petitions, and conducting union elections. These actions are being carried out as normal because they do not require a decision from the full Board.
However, unresolved legal questions and appeals are accumulating rapidly. Cases that would normally move through the administrative system and receive a final decision from the Board are now stuck in legal limbo. This accumulation of unresolved disputes is creating a significant backlog that will take months, if not years, to unwind once a quorum is restored.
More importantly, the inability to issue authoritative interpretations of labor law means uncertainty is growing in the business and labor communities. Employers and unions alike are left to operate in a regulatory environment where new guidance cannot be issued, old rules cannot be clarified or overturned, and precedents cannot be set or revised.
State Governments Respond to the NLRB’s Inaction
In response to the federal paralysis, several state governments have proposed or enacted legislation designed to expand the authority of their own state labor boards. States such as California, New York, and Massachusetts are leading the charge. In fact, New York and California have already enacted such laws. Traditionally, state labor boards regulate state public sector labor relations, covering government employees, school districts, and municipal agencies. However, in light of the NLRB’s current dysfunction, some states are seeking to expand their regulatory authority to include private sector labor disputes.
Proponents of these laws argue the states have a duty to protect workers and employers from regulatory uncertainty. They claim that without state intervention, labor disputes could go unresolved, rights could be violated, and economic harm could result from prolonged inaction. These state laws are being framed as temporary measures designed to fill the void until the federal government is able to restore the NLRB to full operational capacity.
However, this state-level intervention has triggered a significant constitutional controversy. Federal labor law has long operated under the doctrine of federal preemption. This principle holds that when Congress delegates exclusive authority over a particular subject to a federal agency, states are preempted from legislating or regulating in that area. In the realm of private sector labor relations, the Supreme Court has consistently held that the NLRB occupies this exclusive space.
The Doctrine of Federal Preemption in Labor Law
The doctrine of federal preemption is grounded in the Supremacy Clause of the United States Constitution: when federal law conflicts with state law, federal law prevails. In labor law, preemption has been particularly rigid, largely to maintain uniformity in national labor policy. Two landmark Supreme Court decisions have defined the contours of this principle. In Guss v. Utah Labor Relations Board, decided in 1957, the Court held the NLRB retains exclusive jurisdiction over matters assigned to it by Congress, even if the Board does not act on a particular issue. This decision declared states could not step in to resolve labor disputes simply because the federal agency was inactive or overburdened.
In 1959, the Court expanded on this principle in San Diego Building Trades Council v. Garmon. The Court ruled that if an activity is arguably subject to the NLRA, state courts and agencies must defer to the NLRB. The reasoning behind this rule was to protect the uniform enforcement of national labor policy and to prevent a patchwork of state laws from emerging.
Together, these cases form the basis of what is known as Garmon preemption. Under this doctrine, states are generally prohibited from intervening in matters covered by the NLRA, regardless of whether the NLRB is currently capable of acting. This is a high constitutional bar for states to overcome.
The Legal Battle Begins: NLRB Sues New York
In July 2025, the NLRB filed a federal lawsuit challenging New York’s new labor law. The law establishes a framework for the New York State Labor Relations Board to adjudicate private sector labor disputes within the state. It previously only heard cases involving New York’s public sector unions. The NLRB contends this legislation creates a parallel regulatory system that directly conflicts with the NLRA.
The NLRB’s legal argument relies heavily on the Supremacy Clause and the precedent set by Garmon. The agency asserts that even in the absence of a quorum, it retains jurisdiction and states cannot lawfully step into the federal government’s shoes. It further argues that allowing states to take action would lead to conflicting decisions, create confusion for workers and employers, increase litigation costs, and undercut the coherence of national labor policy.
In contrast, supporters of the New York law and similar measures in other states, argue that when a federal agency is nonfunctional, the legal landscape changes. They cite cases such as National Association of Immigration Judges v. Owen, where courts have considered the possibility that states or the judiciary might have a role to play when federal administrative bodies fail to act. These supporters contend regulatory paralysis at the federal level creates a vacuum that the states are not only permitted but required to fill in order to protect their citizens.
The Central Constitutional Question
At the heart of this debate lies a critical constitutional question. Does federal preemption under the NLRA continue to apply when the NLRB is unable to act due to a lack of quorum? This issue has never been squarely addressed by the Supreme Court, and the answer could significantly reshape the balance of power between state and federal governments.
Those who argue in favor of continued federal exclusivity claim preemption does not depend on whether a federal agency is currently functioning. The NLRA remains the law of the land, and the NLRB remains the agency tasked with enforcing it. From this perspective, the temporary inability of the Board to issue decisions does not confer authority on the states to legislate in a preempted field.
On the other hand, those advocating for state intervention argue legal doctrines must evolve in response to practical realities. If the NLRB cannot enforce the law, then someone must. They contend state efforts are not permanent replacements but necessary stopgaps to maintain labor stability and protect rights during a time of federal dysfunction.
Implications for the Future of Federalism and Labor Law
The outcome of this dispute will have far-reaching consequences beyond the immediate crisis at the NLRB. If courts uphold the states’ actions, it could signal a weakening of federal preemption doctrines in other areas of administrative law. Agencies in fields such as environmental protection, health care, and immigration may face similar challenges if they become dysfunctional or politically gridlocked.
Conversely, if the courts strike down the state laws and reaffirm the strength of federal preemption, it may increase the pressure on Congress and the executive branch to ensure that agencies like the NLRB are staffed and operational at all times. It would also reinforce the idea that constitutional and statutory authority cannot shift to the states merely due to political inaction or institutional failure at the federal level.
Conclusion
The NLRB’s current quorum crisis has exposed significant vulnerabilities in the federal administrative system. While regional operations continue, the Board’s inability to issue decisions or set national policy has created a legal vacuum that states are increasingly eager to fill. However, longstanding constitutional principles and Supreme Court precedents suggest that such state action may not be lawful.
This conflict is not merely a bureaucratic dispute. It is a profound test of federalism in the modern era. As federal courts begin to weigh in, their decisions will shape not only the future of labor relations in the United States but also the broader question of how resilient our constitutional structures remain when key institutions falter.
The resolution of this battle will determine whether state governments can act in moments of federal paralysis, or whether constitutional boundaries remain fixed regardless of political dysfunction.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
