Although is difficult to predict what a second Trump administration may augur for the broader political economy, at least one thing is almost certain: in the near future — perhaps sooner than anticipated — Donald Trump’s appointees will recapture control of the National Labor Relations Board (“NLRB”). There is little doubt the corporate attorneys Trump is all but guaranteed to nominate to lead the agency will swiftly move to dismantle the Biden Board’s prounion legacy and, in the traditional Republican fashion, reshape national labor policy in management’s favor. As corporate interests begin to signal an appetite for foundational assaults on the Board’s regulatory capacity, however, the specter that that the incoming administration may pursue more novel, even radical antiregulatory measures looms. These may include, as some have speculated, outright refusing to appoint members to the NLRB. Although such a strategy would hamstring labor law enforcement and prove extraordinarily difficult to challenge in court, it is not clear that, all told, it would inure to management’s benefit.

In terms of litigation, contesting a President’s failure to name NLRB replacements would likely prove all but impossible. The NRLA empowers the President to make appointments to the Board but nowhere compels him to do so. Indeed, President Biden has somewhat controversially left a seat conventionally occupied by a Republican member vacant for nearly two years. Nor would the Administrative Procedure Act, the transsubstantive statute governing federal agencies’ adjudicatory and regulatory activities, offer relief here. Although the APA in principle authorizes judicial review of an executive branch “failure to act,” in practice the availability of such a challenge is largely illusory. While cautioning that an agency may not completely “abdicat[e] its statutory responsibilities,” the Supreme Court has made clear the APA does not empower the judiciary to “enter general orders compelling compliance with broad statutory mandates.” (And again, the President is not even statutorily mandated to nominate Board members.) More conclusively, the Court has announced categorically that the APA does not contemplate judicial review of presidential policymaking.

The President’s conduct remains subject to constitutional constraints even in the absence of statutory remedies. Yet no realistic avenue exists to contest a failure to nominate on constitutional grounds. Although a challenge under the Constitution’s Appointment Clause is theoretically available, the Clause, even tabling thorny questions concerning standing, confers virtually unbridled discretion on the President with respect to the nomination of executive officers. And while disabling an agency from carrying out its statutory charge may contravene the President’s constitutional obligation to faithfully execute the laws, not all constitutional transgressions are necessarily justiciable or redressable. The Supreme Court has declared that seeking to vindicate “the public interest in Government observance of the Constitution and laws” does not constitute an independent basis for litigation, and Congress has not provided a statutory cause of action, either explicitly or implicitly, to enforce the Take Care Clause.

In short, there is little doubt Trump could disable the NLRB if he were inclined to do — and such a move would likely preclude enforcement of federal labor law. The Supreme Court has held that absent a lawfully appointed quorum — at least three members under Section 3(b) — the NLRB may not exercise its powers. And since Congress vested the Board with exclusive jurisdiction to administer the NLRA, courts are largely deprived of authority to adjudicate violations of the Act. Consequently, if the NLRB were disabled, no legal mechanism would exist to challenge, prevent, or redress unfair labor practices. The upshot, then, is that President could effectively nullify the NLRA, and eliminate all the rights, protections, and obligations it creates, without any legislative action, or even so much as a notice-and-comment proceeding.

To be sure, certain caselaw signals that the courts might be disposed to assert jurisdiction if the Board were incapacitated. The Supreme Court has remarked, for instance, that “[i]n the absence of any available administrative remedy,” statutory rights which would otherwise be ”sacrificed or obliterated” are presumptively of judicial cognizance. This strand of jurisprudence is inapposite in the imagined context, however, for it rests on the presumption that where Congress fails to specify a mode of enforcement, it “intended the statutory provisions governing the general jurisdiction of [federal] courts to control.” Here, in contrast, Congress plainly intended to establish an exclusive remedial avenue for labor law violations, a pathway which would be rendered temporarily unavailable by virtue of the Board’s quorum-induced incapacitation. It is doubtful the doctrine could be faithfully extended to encompass such a situation. After all, congressional intent remains the linchpin — it is “for Congress to determine how the rights which it creates shall be enforced,” and in enacting the NLRA, the Supreme Court has concluded, “Congress intended for the Board,” not the courts, “to exercise exclusive jurisdiction in this area.”

Still, given the uncertainty, it is not clear that Trump — or the corporate interests shaping his agenda — would consider this course of action a prudent one. At first blush, eliminating the Board would appear to benefit management in obvious ways; after all, the NLRA safeguards basic labor organizing rights, and if it were unenforceable, employers would be unleashed to deploy all manner of unlawful unionbusting tactics. Unions, on the other hand, would remain burdened by the Act’s most oppressive stricture, since the statute authorizes private actions to remedy secondary activity.

As a practical matter, however, the corporate sector has little evident incentive to ignite the firestorm that incapacitating the agency would surely precipitate. Given working people’s overwhelming support for organized labor, elevating the political salience of unions with such a cynically antilabor move may not prove a sound strategy. Employers have managed to exploit the prevailing labor law regime to such a remarkable extent, after all, that a world in which the NLRA is inoperative may not differ dramatically from the one we presently inhabit. Indeed, the contemporary fissured economy has structurally rendered Section 7’s essential protections all but obsolete for sweeping swaths of the workforce, and the Board’s existing remedial arsenal is so impotent that even covered employers deliberately and systematically transgress the law. Moreover, disabling the NLRB would merely suspend, not extinguish, employers’ liability for unfair labor practices, for a changed administration could enforce charges filed during the Board’s period of incapacity. Lastly, it remains an open question whether in such a world the NLRA’s comprehensive preemption regime would continue to bar prolabor legislation at the subfederal level. All told, then, management planners may regard it as more advantageous to inconspicuously unravel the Biden Board’s prounion initiatives, and continue to slowly strangle organized labor, than to deactivate the NLRB’s authority in such a provocative manner.

Perhaps for these reasons, Trump and his corporate allies have so far displayed no discernible interest in disabling the NLRB. Still, such a strategy remains within the realm of possibility. Many of Trump’s most intimate advisers are staunchly committed to radically dismantling regulatory power in general and viscerally hostile to the Board in particular. And the move would not be entirely unprecedented; Trump took similar action during his first term with respect to the Merit Services Protection Board, an agency designed to protect the federal civil service. Ultimately, incapacitating the NLRB would merely represent an acceleration of the trend toward “structural deregulation” that scholars have identified with alarm in recent years, a strategy Trump embraced more aggressively than any of his predecessors. Perhaps, for better or worse, it is a reality for which the labor movement ought not find itself wholly unprepared.