Discourse, Reality, and Bizarro World Populism

The NLRB will get much weaker under a second Trump administration

According to Batya Ungar-Sargon, we can understand the Trump movement as a “multi-ethnic working-class coalition” fighting neoliberalism. As this story goes, Democrats abandoned the middle class and poor. Republicans of course were never on their side. Voters got fed up with this, and therefore ran into the arms of Trump, who promised them lower immigration, protectionism, support for labor unions, and other policies that defend working-class interests.

It’s hard to even know where to begin in describing all that is wrong with this analysis. First of all, I don’t believe that what often get called “pro-worker” policies actually help poorer Americans. But that’s just an economic disagreement, the normal stuff of politics. What is indisputable is that if you are an economic populist, then you should clearly support Democrats, as they are the party that is in favor of more redistribution and giving organized labor what it wants. Moreover, Trump’s voters are not motivated by economic concerns anyway. To the extent that he’s won over some working-class blacks and Hispanics, it’s more due to his persona than his policies. The multiracial working class narrative manages to be wrong on economics, political science, psychology, and recent history all at the same time. It’s so bad it somehow becomes impressive. Even liberals who disagree with me on economics will, if they’re smart, acknowledge that this is not how to explain the Trump phenomenon.

A better way to understand the rise of Trump is as a reworking internal to the Republican coalition. Within the right, pro-market elites have always provided the money and much of the leadership class, while people who are social conservatives and nativists, who don’t think much about economics, supply the votes. Even when the latter group seems to focus on economics like when they got riled up about Obamacare, they see taxation and regulatory issues as proxy wars in a larger cultural struggle. The Republican Party has therefore always been a pro-market and socially conservative/anti-foreigner coalition. Sometimes, being pro-market conflicts with nativism, since businesses want to trade with and hire foreigners and libertarians think they have a right to do so.

Before Trump, in these situations policy was tilted towards positions favored by the elites. Republican leaders would talk tough on immigration and foreign countries, but when it came to governing they would be soft on the border, try to expand legal immigration, and vote for free trade deals. Trump saw an opportunity here, and now the coalition is more tilted in the anti-foreigner direction. The right is still made up of the same people, just with the nativists getting more of what they want, rhetorically and sometimes in terms of concrete policy.

But it’s still the same coalition. What we have not witnessed is the replacement of one economic philosophy with another. This means that on almost everything except immigration and trade, and sometimes not even there, the pro-market folks are still going to get what they want. This is clear to anyone who actually paid attention to policy during the last administration. Trump cut taxes, sought to cut entitlements, pushed deregulation, and was hostile to labor unions. If you expect a second Trump administration to be economically leftist in any kind of broad sense you are uninformed about his first term. At the same time, he did get tough on immigration and start trade wars, so you can expect more of that too.

All of this was driven home Monday by a district court decision coming out of Texas. The National Labor Relations Board is an independent agency that adjudicates disputes between employers and unions, or workers who want to unionize. This gives it a lot of say in determining the degree to which unions have any power at all. The NLRB has five members, who are appointed by the president, confirmed by the Senate, and serve staggered five-year terms. By tradition, the way independent agencies work is that the president gets three members of his own party, and two belonging to the other party. Thus a party transition in the White House in effect changes the state of labor law.

The entire idea of an independent agency raises constitutional questions. In May, the Fifth Circuit ruled in Jarkesy v SEC that the enforcement process of the Securities and Exchange Commission was unconstitutional on the grounds that Congress had delegated too much power to the agency. Moreover, the underlying statute gave administrative law judges (ALJs) too much protection from being fired. As the law stood, they could only be replaced “for cause” in a process subject to review by the Merit Systems Protection Board. Article II of the constitution gives the president authority to “take Care that the Laws be faithfully executed.” The double layer of protection for ALJs meant that they were, unlike Article III judges, part of the executive branch but not subject to direct removal by the president, which meant that they were insulated from his control and their role was therefore unconstitutional.

The NLRB has its own judges, and they have the same protections against being fired that those of the SEC did. There was no reason not to apply the previous ruling from one independent agency to another, and a Fifth Circuit district court judge in Aunt Bertha v. NLRB therefore granted a preliminary injunction to an employer seeking to enjoin the ongoing NLRB procedure it was being subjected to. In effect, declaring ALJs unconstitutional under current law throws the work of many independent agencies into a state of chaos. It would require additional legislation from Congress in order for them to be able to carry out their functions as traditionally practiced, but new laws on hot button issues are difficult to pass and get to the president’s desk. In effect, what Jarkesy and Aunt Bertha do is take away much of the power of the administrative state to tell companies and individuals what to do, which is a blow to unions, since they require government coercion to survive and prosper.

Outside the Fifth Circuit, two Democrat-appointed judges in Michigan and Illinois have rejected preliminary injunction requests based on the same grounds that one was granted in Aunt Bertha. The way the federal court system works is that precedent is binding within each circuit, until the Supreme Court rules one way or the other, which it often does when there is a split between them. The Fifth Circuit covers Mississippi, Louisiana, and Texas, and is known for being conservative. The lawsuits regarding the NLRB are only at the preliminary injunction stage, but if and when there are substantive rulings in different parts of the country in opposite directions, the Supreme Court will have to eventually decide whether ALJs as they have traditionally existed are constitutional.

The judge in Aunt Bertha is Mark Pittman, who was appointed by Trump in 2019. When the decision granting the preliminary injunction came down, I joked “Fine! They’re eating the dogs, they’re eating the cats. Say whatever you need to in order to get more judges like this.” I’m only semi-serious, as I still wish Trump wouldn’t talk about Haitians stealing pets. It’s ugly, false, and exactly the kind of thing that makes conservatism a low human capital movement, showing any intelligent person following the controversy that the right is racist but not even brave enough to admit it nor smart enough to get its basic facts right.

Clearly a MAGA judge

Arguably, Pittman didn’t have much of a choice, as he was bound by Jarkesy, the earlier case involving the SEC. But Jarkesy itself was a quite radical decision, and you can guess the party of the president who appointed the two judges who were in the majority in that case. The Supreme Court, which can in effect make new law, has ruled against organized labor in one decision after another in recent years. If he gets back into office, Trump will appoint more judges who will do the same, and board members to the NLRB who will have come out of the conservative movement and be hostile to unions.

All of this may seem confusing if you get your information about current events from bizarro world populists.

We can think of politics as existing on two different levels. First, there’s the discourse. In this universe, Trump and Vance do things like praise unions, go meet them on the picket line, and invite one of their leaders to speak at the RNC. If someone only reads about things like what Trump says but doesn’t pay attention to court decisions or NLRB procedures, then they might think that Republicans are now pro-organized labor. The economic agenda of the pro-market crowd isn’t very popular, so it has no incentive to correct these misperceptions.

Then there’s the policy reality. Trump as president will appoint judges and officials who will do the real work of governing. They will answer boring questions like “are administrative law judges constitutional?” and “how easy should it be for employers to sue unions for property damage caused by strikes?” Where courts and bureaucrats come down on these questions, including after Trump leaves office, will determine the amount of power organized labor has in the economy. Their decisions will make the news, but be ignored by those selling the idea of a working-class multiethnic coalition as they focus instead on whatever shiny object happens to be in front of them. Some smarter conservative publications will of course care; here’s National Review on Aunt Bertha, for example

On the left, there’s more of a convergence between discourse and reality. In my experience, very few prominent Harris supporters are unclear on questions like which side is more supportive of organized labor. The MAGA movement is one more interested in personalities than ideas, so it goes by what politicians say and is satisfied with cheap posturing. And because Trump is uniquely incoherent and says all kinds of things that people can latch on to, you can basically build any fantasy version of the man you want.

As with the question of labor unions, many are convinced that Trump is “anti-war” simply because he sometimes says anti-war things, even though he ended up hiring people like John Bolton and Mike Pompeo. The same general story has continued post-presidency, as this year he intervened in congressional deliberations in order to secure aid for Ukraine, simply demanding cosmetic changes to the bill under consideration in order to structure a small part of it as a loan, which is a meaningless provision since the president can set the terms for the loan and potentially forgive it without congressional approval.

Both hawks and doves can tell themselves that Trump is on their side, but the pro-Trump hawks are the ones who remember what he did while in office. Anti-war Trump supporters are either going to be disappointed in a second term, or sometimes they’re just doing it for eyeballs and clicks and don’t care what happens either way as long as they build an audience. There are a lot more people who are interested in hearing about the discourse than policy details, especially on the right with its human capital problem, so the most superficial analysts tend to have the largest followings. Of course, there is a great deal of overlap between those who think Trump is an economic populist and those who believe he is anti-war, with the common thread being that both positions fit into the bizarro world populism narrative and require one to be uninformed.

The idea of declaring the structure of the NLRB unconstitutional wasn’t even on the menu until conservatives got enough control over the judiciary. The Supreme Court usually does not go as far to the right as the Fifth Circuit, but four more years of Republican appointees will not only solidify the gains that have been made so far but open up new possibilities. I don’t think it’s unreasonable to believe that another Trump administration could help break the power of organized labor in this country as we know it. It would be very funny if this is in the end one of the results of bizarro world populism.