It is difficult to predict what a second Trump administration may augur for the broader political economy, yet 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. 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, reformulate national labor policy in management’s favor. As corporate interests begin to signal an appetite for more fundamental assaults on the Board’s regulatory capacity, however, the specter that that the incoming administration may pursue more novel and radical antiregulatory measures looms. These may include, as some have speculated, outright refusing to appoint members to the NLRB. Such a move would hamstring labor law enforcement and be extraordinarily tricky to challenge in court. Still, all things considered, it is not clear it would ultimately inure to management’s benefit.

As an initial matter, legally 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 vacant for nearly two years. Nor would the Administrative Procedure Act, the transsubstantive statute governing federal agencies’ adjudicatory and regulatory activities, offer relief. True, the APA authorizes judicial review of the executive branch’s “failure to act.” But it is exceedingly difficult to challenge inaction under the statute; while cautioning that an agency may not completely “abdicat[e] statutory responsibilities,” the Supreme Court has made clear that 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.) Moreover, the Court has announced categorically that the APA does not contemplate judicial review of presidential action.

The President’s conduct remains subject to constitutional constraints even in the absence of statutory remedies. Yet there is no realistic avenue to challenge a failure to nominate on constitutional grounds. Even tabling thorny questions concerning standing, the Appointment Clause confers virtually unbridled discretion on the President with respect to nominating 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. Here, Congress has not ordained a cause of action to enforce the Take Care Clause, and the Supreme Court has declared that vindicating “the public interest in Government observance of the Constitution and laws” does not constitute an independent basis for litigation.

In short, there is little question Trump could disable the NLRB if he were so inclined. Doing so 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 prevent or redress unfair labor practices. Put differently, the President could effectively nullify the NLRA—and all the rights and obligations it creates—without any legislative action, or even so much as a notice-and-comment proceeding.

To be sure, certain caselaw suggests the courts might 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. But there is reason to suspect this strand of jurisprudence would be inapposite in the imagined context. 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 pathway for labor law violations, a pathway which would be rendered temporarily unavailable. It is doubtful the above 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 high court has explained, “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; if it were unenforceable, employers would be free to unleash all manner of unlawful unionbusting tactics. Unions, on the other hand, would remain obstructed by the Act’s most oppressive stricture, since the statute authorizes private actions to remedy secondary activity.

In reality, 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 wise 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 inhabit. Indeed, the contemporary fissured economy has 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 firms systematically run afoul of the law. Also, 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. Furthermore, it is 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 controversial 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: in 2017, Trump took similar action 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.