New
York
watched
the
federal
government
give
up
on
labor
relations
law
and
tried
to
do
something
about
it.
The
state
lost.
Because
the
law
doesn’t
work
that
way.
Last
week,
Amazon
successfully
secured
a
preliminary
injunction
blocking
New
York
from
enforcing
its
newly
amended
State
Employment
Relations
Act.
SERA
historically
covered
agricultural
and
non-employee
contractors
left
unprotected
by
the
NLRA.
In
September,
New
York
expanded
SERA
to
cover
workers
traditionally
under
federal
jurisdiction
—
explicitly
citing
the
Trump
administration’s
decision
to
leave
the
NLRB
without
a
quorum.
But
that’s
not
how
the
Supremacy
Clause
works.
When
the
federal
government
announces
its
intention
to
occupy
a
regulatory
field
—
here,
labor
law
under
the
NLRA
—
the
states
get
kicked
out
of
the
sandbox.
Garmon
and
Machinists
underscore
this
arrangement,
confirming
that
if
conduct
is
even
“arguably”
protected
or
prohibited
by
Sections
7
or
8,
the
federal
scheme
wins.
In
the
Amazon
case,
Judge
Eric
Komitee
of
the
Eastern
District
of
New
York
did
what
federal
judges
are
supposed
to
do:
he
applied
Garmon
like
it’s
been
applied
for
65
years,
slapped
New
York’s
SERA
amendment
off
the
table,
and
told
the
state
to
go
sit
in
the
corner
while
the
National
Labor
Relations
Board
—
the
federal
agency
Congress
explicitly
empowered
to
regulate
labor
relations
—
does
its
job.
Even
though
the
“federal
scheme,”
the
one
that
supposedly
occupies
the
field
so
completely
that
New
York
can’t
regulate
labor
relations
even
when
it
wants
to,
isn’t
a
scheme
at
all
anymore.
It’s
a
smoldering
crater
where
an
independent
NLRB
used
to
be.
From
Judge
Komitee’s
opinion:
In
Garmon,
the
Supreme
Court
held
that
“[w]hen
an
activity
is
arguably
subject
to
§
7
or
§
8
of
the
[NLRA],
the
States
as
well
as
the
federal
courts
must
defer
to
the
exclusive
competence
of
the
[NLRB].”
359
U.S.
at
245.
This
rule
“prevents
States
not
only
from
setting
forth
standards
of
conduct
inconsistent
with
the
substantive
requirements
of
the
NLRA,
but
also
from
providing
their
own
regulatory
or
judicial
remedies
for
conduct
prohibited
or
arguably
prohibited
by
the
Act.”
Gould,
475
U.S.
at
286
(emphasis
added).
When
Congress
created
this
system,
it
envisioned
a
functioning,
independent
federal
agency.
It
didn’t
anticipate
an
administration
that
would
fire
board
members
in
defiance
of
statutory
removal
protections,
strip
the
agency
of
its
quorum,
and
then
pledge
to
keep
the
agency
functionally
shut
down
either
through
vacancies
or
stacking
the
Board
with
cronies
hostile
to
executing
its
statutory
mission.
Does
the
federal
government
still
“occupy
the
field”
when
it’s
intentionally
sowing
the
field
with
salt
like
it’s
Carthage?
New
York
knew
that
states
have
no
legal
authority
to
regulate
labor
relations
otherwise
covered
by
the
NLRA
and
would
be
shut
down
by
the
courts
if
they
ever
tried.
That’s
why
its
law,
until
recently,
only
applied
to
workers
excluded
from
the
NLRA.
What
New
York
hoped
was
that
the
unique
circumstances
brought
on
by
the
federal
government
under
Trump
occupying
the
field
in
name
only
would
be
recognized
by
the
courts
as
the
federal
government
abandoning
the
field.
Clever
theory!
Also
a
failed
one.
Judge
Komitee
acknowledged
the
state’s
argument
that
these
“historically
unique
circumstances”
justified
an
exception
to
Garmon.
He
just
couldn’t
do
anything
about
it,
noting
that
“the
Supreme
Court’s
clear
pronouncements
include
no
‘unique
circumstances’
exception.”
Which
turns
the
Supremacy
Clause
into
both
a
sword
and
shield
in
ways
that
would
give
the
Framers
nightmares.
The
federal
government,
via
the
NLRA,
claims
exclusive
authority
by
occupying
the
space.
Then
the
federal
government,
via
the
executive
branch
acting
unilaterally,
retreats
from
that
space.
And
states
can’t
fill
the
vacuum
because
the
federal
government
is
still
technically
“there”
—
even
if
they’re
only
“there”
the
same
way
a
condemned
building
is
still
technically
there.
But
it’s
a
sword
and
shield
with
a
separation
of
powers
twist
since
the
Supremacy
Clause
impliedly
gets
its
power
from
the
idea
that
a
federal
law
is
passed
by
Congress
and
signed
by
the
president,
while
in
this
case
the
executive
branch
is
acting
alone
in
repurposing
the
law.
Shouldn’t
that
change
the
analysis?
Probably…
but
that’s
not
a
set
of
circumstances
that
federal
district
courts
are
really
equipped
to
address.
Because
doctrine
wasn’t
built
to
handle
bad
faith.
No
one
thought
enough
to
add
a
footnote
to
Garmon
about
a
Twilight
Zone
scenario
where
a
future
executive
might
seize
control
over
putatively
independent
agencies
and
then
either
gut
them
or
weaponize
them
to
dismantle
the
very
laws
they
are
statutorily
put
there
to
enforce.
So
states
are
constitutionally
barred
from
protecting
workers,
even
when
the
federal
government
refuses
to
do
so,
because
the
federal
government
keeps
a
statute
on
the
books
promising
that
it
might
theoretically
start
protecting
them
again
someday.
The
constitutional
crisis
isn’t
that
the
judge
got
this
wrong.
It’s
that
he
got
it
right.
(Full
opinion
available
on
the
next
page…)
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
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Follow
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