Consistent with rhetoric used by the prior Federal administration and its allies in Congress, a majority of the Supreme Court appears interested in limiting law enforcement agencies’ effectiveness as the investigative and prosecutorial missions of the agencies are more important now than ever. These law enforcement agencies include the United States Department of Labor, the Federal Trade Commission, the United States Securities and Exchange Commission, the National Labor Relations Board, the United States Equal Employment Opportunity Commission, the Consumer Financial Protection Bureau, and the United States Department of Justice. In the last several years, these law enforcement agencies have coordinated their resources to enhance their collective effectiveness. The law enforcement agencies also have significantly expanded their law enforcement efforts to address an array of corporate abuses, such as wage theft, employee misclassification, civil rights violations, safety breaches, unfair labor practices, and employer fraud.

The Supreme Court has started considering cases involving law enforcement agency authority, and the majority opinion issued in those cases so far undercuts agency authority. Starbucks v. McKinney is the most recent example. In Starbucks, the majority opinion disregarded decades of settled precedent rendered by appellate courts across the nation and declared that the National Labor Relations Board now must be treated like a private litigant when evaluating whether a court injunction sought by that law enforcement agency should be issued to stop an employer from continuing to commit an alleged unfair labor practice (“ULP”). By so doing, the majority opinion ignored the expansive role Congress has established for the National Labor Relations Board to decide labor disputes – including whether an employer is committing a ULP in violation of the National Labor Relations Act – and the limited role Congress has permitted for courts in this context. In other words, the majority opinion decided that the substantive expertise of the National Labor Relations Board regarding whether an employer is committing a ULP does not warrant any deference – even though one of that law enforcement agency’s central statutory mandates and operational foci is to adjudicate whether employers commit ULPs. In short, the majority opinion in Starbucks conflicts with common sense in addition to clearly established law.