FLRA v. Ohio Adjutant General: The Supreme Court Confronts Federalism and Workers' Rights
By Maclain Conlin
Issue II: Federal Constitutional Structure
In 1978, Congress enacted the Federal Service Labor-Management Relations Statute or FSLMRS, establishing the Federal Labor Relations Authority. In plain language, the statute says that when federal workers threaten to strike against their superiors, the FLRA has the authority to enter the bargaining room and force an agreement. Furthermore, it also gives the FLRA the power to investigate and regulate labor unions. Importantly, however, the statute only gives the Authority jurisdiction over labor disputes arising within federal “[e]xecutive agenc[ies].”  Thus, the FLRA does not have the authority to intervene in labor disputes at the state level, nor can it regulate collective bargaining at the federal level when the employees in question do not work for an “[e]xecutive agency” (e.g., congressional staffers or Supreme Court clerks). This past term, the Supreme Court resolved an intriguing and difficult question: are technicians who work for the Ohio National Guard, a dual federal/state body, employees of a federal “[e]xecutive agency”?
The case arose in 2016, when the Ohio National Guard announced that it would deduct Union dues from the pay of dual-status technicians who were employed at the Guard,  in violation of a previous agreement with Union leaders. The Union filed a complaint with the FLRA, accusing the Guard of “unfair labor practices” and failure to negotiate in good faith, and asking the Authority to intervene and compel a satisfactory settlement. The Authority investigated the allegations and agreed, ordering the Guard to “follow the mandatory terms of the [previous agreement], bargain in good faith going forward, and reinstate Union dues….”  The Ohio Adjutant General appealed, saying that the Ohio National Guard was not an “[e]xecutive agency” and was thus not subject to the FLRA’s jurisdiction. While it may look like a merely technical dispute at first glance, Ohio Adjutant General’s Department v. Federal Labor Relations Authority is, in reality, a landmark case with dramatic consequences for workers’ rights, military law, and our Nation’s constitutional structure. Hence, eleven states joined an amicus brief, noting that while our Nation’s national defense is ultimately a federal matter, the Framers always intended that a separate militia system, supervised and regulated by the states, would exist alongside a federal military. Specifically, the brief explained:
“To provide security, the Constitution entrusts most military matters to the national government. Congress can raise and fund an army of professional soldiers. National defense is thus not left to States’ willingness to cooperate. But to preserve liberty, the States retain control over the militia. States train the militia, appoint its officers, and (except when called into federal service) use it to address their own emergencies. This system of federalism strikes a balance to provide both security and liberty…. The decision below erodes the design…. It permits the national government to exert day-to-day control over a state Guard. It mandates how an Adjutant General works with labor unions, bargains, and promotes. It allows this intrusion into state functions on matters unconnected to national defense or the battlefield. Whatever may be said of the last century’s changes to the constitutional design, this goes too far.” 
On May 18, 2023, the U.S. Supreme Court announced its ruling, holding by a 7-2 vote that the Ohio National Guard is subject to the FLRA’s authority. In an opinion written by Justice Thomas, the Court acknowledged that the Guard is not itself an “[e]xecutive agency” under any of the definitions provided in the statute (see n. 1), but argued that, in this case, it acted as one. It pointed out that the technicians in question have been hired since at least 1968 by order of the Secretaries of the Army and of the Air Force, who are subject to the FLRA. Thus, although they are ultimately employed and supervised by state officials, they are for the purposes of the statute federal employees. “Accordingly,” claimed the Court, “[these] dual-status technicians are ultimately employees of the Secretaries of the Army and the Air Force, and [the Ohio National Guard is] the Secretaries’ designee for purposes of dual-status technician employment.” 
It is interesting to think about how this reasoning might apply to a separate casein which certiorari was denied to the surprise of many by the Court, Bonnie Peltier v. Charter Day School, Inc.  In that case, the question was whether or not charter schools, which are privately operated schools designated to provide free public education by the state, are subject to the same constitutional rules as traditional public schools. In Ohio Adjutant General's Dept., the Court has held that when the federal Defense Department designates state officials to carry out a federal function, these officials are subject to the same legal requirements as if the Defense Department were itself carrying out that function. While it is true that one deals with a statutory question and the other deals with a constitutional question, the two cases seem to involve similar interpretive issues. However, while the Defense Department explicitly directs state officials to hire dual-status technicians, most states do not compel charter schools to adopt any particular policies so long as they meet certain academic requirements.
In his dissent, Justice Samuel Alito, joined by Justice Gorsuch, focused on the explicit text of the statute. The law only applies to “labor organizations [i.e, unions] and [executive] agencies.”  The Ohio National Guard is “obviously” not a labor organization, and it isn’t on the list of executive agencies provided in Section 101. Thus, they write, “FSLMRS’s language unambiguously does not allow the FLRA to direct a remedial order to [the Guard]. That should be the end of the matter.”  In responding to the majority’s discussion of the Guard performing an Executive-Branch function, the dissent again returns to the plain language of the statute. Congress could have given the FLRA authority over every institution in the land which performs any action on behalf of a federal agency, but it didn’t. It only gave the Authority power over Executive-Branch agencies themselves. Justice Alito explains:
“The problem with th[e] [majority’s] reasoning is that a ‘designat[ion]’ to exercise the authority of an ‘agency’ does not turn the designee into an agency. Just because A is designated to exercise the authority of B, it does not follow that A is B. Here is an example. If an administrative hearing officer in the Department of the Interior is disqualified from hearing a case, that officer must report that information ‘to the Secretary of the Interior or such officer as he may designate.’”
The designated officer does not become the Secretary by virtue of having been designated to carry out a duty or exercise authority that would otherwise rest with the Secretary. The same is true here. The designation of petitioners by the Departments of the Army and Air Force to perform some of those departments’ duties and to exercise some of their authority does not turn petitioners into agencies or necessarily have any effect beyond assigning them those duties and responsibilities.” 
After seven years of heated litigation, this important question has finally been resolved. The Court’s reasoning will have significant consequences that stretch far beyond military employment practices, and may even reshape our Nation’s public education system. For example, single-sex education would generally violate the Equal Protection Clause if practiced by the state.  Yet a significant number of charter schools are single-sex, with positive academic results. According to one amicus brief filed in the Peltier case, “students in single-sex schools are less likely to categorize subjects as ‘masculine’ or ‘feminine,’ and more likely to engage with subjects historically associated with the opposite sex.”  If every actor which performs a duty on behalf of a state institution (whether it be a private foundation providing free public education or a state National Guard hiring Defense Department technicians) is bound by the same legal rules as that state institution, these schools indeed, “face the threat of extinction.”  If the Court’s rule in FLRA is limited to the facts of that case, and does not apply to constitutional issues, hopefully the Court will clarify that in the near future, before irreparable harm is done to educational innovation. Regardless of whether you have any interest in statutory interpretation, labor law, or school choice (and regardless of whether you agree with Justice Thomas or Justice Alito), this is a decision worth reading.
 1 The law provides a remarkably precise definition of this term, limiting it to “executive departments, government corporations, and independent establishments.” “Executive departments are” any of the 15 departments led by cabinet-level secretaries. See 5 U.S.C. §101. “‘Government corporation’ means a corporation owned or controlled by the Government of the United States.” See 5 U.S.C. §103(1). “Independent establishment” is essentially a catch-all for executive agencies not specifically outlined before, but it is limited to “independent entit[ies] within the executive branch.” Scott v. Fed. Rsrv. Bank of Kansas City, 406 F.3d 532, 535 (8th Cir. 2005) (emphasis added).
 These technicians are hired and employed by state national guards at the direction of the Department of Defense.
 Ohio Adjutant General’s Department et al. v. Federal Labor Relations Authority et al., 598 U. S. ___ (2023) (slip op., at 5).
 Amicus brief of Mississippi, et. al., in Ohio Adjutant General’s Dept., supra, p. 2.
 Ohio Adjutant General's Dept., slip op., at 8.
 No. 20-1001 (4th Cir. 2022)
 Ohio Adjutant General's Dept., slip op., at 1.
 Alito, J., dissenting, slip op., at 2-3.
 Id. at 5-6. Citing 43 U. S. C. §101 (emphasis added).
 See United States v. Virginia, 518 U.S. 515 (1996).
 Amicus Brief of the Independent Women’s Law Center, in Bonnie Peltier, supra, p. 5.
 Id. at 7.