IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60364

VOICES FOR INTERNATIONAL BUSINESS AND EDUCATION, 

INCORPORATED, doing business as International High School of New 

Orleans, 

 Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD, 

 Respondent Cross-Petitioner

On Petition for Review and Cross-Application 

for Enforcement of an Order of the

National Labor Relations Board

Before ELROD, COSTA, and HO, Circuit Judges.

GREGG COSTA, Circuit Judge:

The National Labor Relations Act does not apply to a “political 

subdivision” of a state. 29 U.S.C. § 152(2). We decide whether a Louisiana 

charter school qualifies for that exemption from federal labor law. 

I.

Nowhere in the country has the charter school movement garnered a 

greater foothold than New Orleans. More than 90% of public-school students 

in Orleans Parish now attend charters. The reconstruction of the city after 

Hurricane Katrina was the impetus for the meteoric growth of charter schools. 

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2018

Lyle W. Cayce

Clerk

 Case: 17-60364 Document: 00514652362 Page: 1 Date Filed: 09/21/2018
No. 17-60364

2

See Amelia A. DeGory, The Jurisdictional Difficulties of Defining CharterSchool Teachers Unions Under Current Labor Law, 66 DUKE L.J. 379, 387 

(2016); Amy Moore, Brokering Education: A Study of Charter Receipt, Renewal, 

and Revocation in Louisiana’s Charter Schools, 11 LOY. J. PUB. INT. L. 343, 

343–44 (2010). 

But the Louisiana law allowing charter schools predates that disaster.

Enacted in 1995, the Louisiana Charter School Demonstration Programs law

“authoriz[es] the creation of innovative kinds of independent public schools for 

pupils.” La. Rev. Stat. Ann. § 17:3972(A). It allows various groups and entities, 

such as “ten or more citizens” or a “business or corporate entity registered to 

do business in Louisiana” to form a nonprofit corporation for the purpose of 

forming a charter school. Id. § 17:3983(A)(1)(a), (d). A local school board may 

enter into a charter with such a corporation if the board finds that the charter 

is “valid, complete, financially well-structured, and educationally sound.” Id.

§ 17:3983(A)(4)(a). The state board of education may also approve charters. 

Id. § 17:3983(A)(4)(b). A charter school’s governing board, not the state, 

employs faculty and staff, and the nonprofit operator shall have “exclusive 

authority over all employment decisions at the charter schools.” Id.

§ 17:3997(A)(1)(a)–(b). 

A group of citizens incorporated Voices for International Business and 

Education as a nonprofit in 2009. That same year Voices began operating the 

International High School of New Orleans under a Type 21 charter with the 

Louisiana Board of Elementary and Secondary Education. The charter 

provides that Voices will not participate in the Teachers’ Retirement System 

 

1 A Type 2 charter is a new startup school authorized by the Louisiana Board of 

Elementary and Secondary Education. A Type 1 charter is a startup authorized by a local 

school board. Other types of charters apply to converted public schools authorized as charters 

by either the state board or a local school board. See La. Rev. Stat. Ann. § 17:3973(2)(b).

 Case: 17-60364 Document: 00514652362 Page: 2 Date Filed: 09/21/2018
No. 17-60364

3

of Louisiana or the Louisiana School Employees’ Retirement System; that 

Voices shall be the “final authority” in all matters affecting the school; and that 

Voices is “not acting as the agent of, or under the direction and control of” the 

state education board, except as specifically required by law or the charter.

Voices’ corporate bylaws vest its powers in a board of directors. The 

articles of incorporation name the original directors. The original board has to 

approve any new directors, officers, and committee chairs. Any board member 

may be removed with or without cause by a three-fourths vote of the remaining 

members. The state can remove a board member only if the member violates 

state ethics rules. La. Rev. Stat. Ann. § 17:3996(B)(20); La. Rev. Stat. Ann. § 

42:1153(B).

A labor union, the United Teachers of New Orleans, filed a petition with 

the National Labor Relations Board seeking to represent Voices employees.

Voices objected on the ground that the Board lacked jurisdiction because Voices 

is a political subdivision of Louisiana. A hearing officer rejected that 

argument. Over a dissent, the NLRB agreed that Voices is not a political 

subdivision because it “was neither created directly by the state of Louisiana 

so as to constitute a department or administrative arm of the government nor 

administered by individuals who are responsible to public officials or the 

general electorate.” The Board also rejected Voices’ request that it exercise its 

discretion to decline jurisdiction under 29 U.S.C. § 164(c)(1). 

In the election that followed, the employees voted in favor of union 

representation. Voices refused to recognize or negotiate with the union,

maintaining the view that it is exempt from NLRB jurisdiction. The union

then filed a charge against Voices for refusal to bargain. The NLRB found that 

Voices had committed an unfair labor practice and ordered it to recognize and 

bargain with the union. This petition for review, which presents only the 

“political subdivision” question, followed.

 Case: 17-60364 Document: 00514652362 Page: 3 Date Filed: 09/21/2018
No. 17-60364

4

II.

The National Labor Relations Act applies to most private employers. 

But its jurisdiction does not extend to the federal government or “any State or 

political subdivision thereof.” 29 U.S.C. § 152(2). The reason it does not 

regulate the labor relations of government employees is that they “did not 

usually enjoy the right to strike.” N.L.R.B. v. Nat. Gas Util. Dist. of Hawkins 

Cty., 402 U.S. 600, 605 (1971). That is not the case in Louisiana, Davis v. 

Henry, 555 So. 2d 457, 461–62, 464–66 (La. 1990), but its anomalous state labor 

law does not affect the question of federal labor law we confront: whether 

Voices is a political subdivision of Louisiana. Hawkins Cty., 402 U.S. at 604. 

The Act does not define “political subdivision.” Id. The NLRB has long 

defined it to include two situations: when an entity is “(1) created directly by 

the state, so as to constitute departments or administrative arms of the 

government, or (2) administered by individuals who are responsible to public 

officials or to the general electorate.” Id. at 604–05. The Supreme Court has 

said that this agency definition is “entitled to great respect.” Id. at 605. 

But we need not give any deference to the Board on this question.2 The 

Board’s definition is consistent with the common meaning of “political

subdivision” of a state. The Board’s first category—entities created by and 

operated as part of state or local government—fits easily within that ordinary 

meaning. So does an entity that is controlled by public officials or the polity 

more generally. The key is that for both of the Board’s definitions of political 

subdivision, ultimate authority over policymaking remains with the public. 

N.L.R.B. v. Natchez Trace Elec. Power Ass’n, 476 F.2d 1042, 1045 (5th Cir. 

 

2 We thus see no disagreement with the concurring opinion on the analysis and 

outcome of this case: the entire panel agrees that Voices is not a political subdivision under 

the plain meaning of the NRLA exemption. Because resolution of this case does not turn on 

agency deference, be it Chevron or some other form, the majority opinion does not explore 

those academic questions. 

 Case: 17-60364 Document: 00514652362 Page: 4 Date Filed: 09/21/2018
No. 17-60364

5

1973) (characterizing the Board’s two-part definition as capturing when “[t]he 

general public exercises [] control” over the entity).

Voices lacks that political accountability. That is by design. One of the 

perceived virtues, if not the virtue, of charter schools is that a lack of political 

oversight gives them freedom to experiment.3 See La. Rev. Stat. Ann.

§ 17:3972(A). Successful innovations, the idea is, will not just benefit the 

school that tests them but will set an example for reform that even traditional 

public schools might later adopt. Cf. New State Ice Co. v. Liebmann, 285 U.S. 

262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of 

the federal system that a single courageous state may, if its citizens choose, 

serve as a laboratory; and try novel social and economic experiments without

risk to the rest of the country.”). 

Louisiana charter school operators like Voices enjoy that greater freedom 

to innovate because they are not controlled by political actors. The corporation 

selected the inaugural board of directors. Those privately selected board 

members are the only ones who can nominate and select additional or 

replacement members. The self-perpetuating board can also remove a member 

with or without cause. Unlike traditional public schools, which are typically 

governed by elected school boards, there is thus no public mechanism for 

changing the policies in schools Voices operates. Privately selected citizens set 

those policies and get to decide whether they are altered. See N.L.R.B. v. 

Highview, Inc., 590 F.2d 174, 176 (5th Cir.) (explaining that because the board 

of a nonprofit corporation operating nursing homes in county-owned facilities 

 

3 Some of the “innovative school missions” of Type 2 charter schools in Louisiana are 

“serving military families,” “providing foreign-language immersion programs,” “online 

schooling for families who need flexibility,” and “programs specifically designed to educate 

and remediate students with dyslexia.” Locating Type 2 Public Charter Schools in 

Louisiana, LA. ASS’N PUB. CHARTER SCH. (Mar. 16, 2018),

https://lacharterschools.org/locating-type-2-public-charter-schools-louisiana/.

 Case: 17-60364 Document: 00514652362 Page: 5 Date Filed: 09/21/2018
No. 17-60364

6

was “self-perpetuating,” the “county cannot influence the directors selection or 

affect the directors’ decisions”), vacated in part on reh’g on other grounds, 595 

F.2d 339 (5th Cir. 1979).

Voices points to one narrow way in which public officials can affect the 

composition of its board. The charter allows the Louisiana Ethics Adjudicatory 

Board to remove a Voices director for violations of laws it enforces. See La. 

Rev. Stat. Ann. § 42:1153(B). But this possibility of for-cause termination 

when a Voices board member violates state ethics laws does not give public 

officials policymaking authority over the corporation. In the event of a 

director’s removal for ethics violations (something that has never happened at 

Voices), the corporation’s board of directors would have sole authority to select 

any replacement. That distinguishes Louisiana’s removal authority from the

remove-and-replace authority the public enjoyed for corrupt commissioners of 

a Tennessee natural gas utility district that the Supreme Court classified as a 

political subdivision. See Hawkins Cty., 402 U.S. at 607–08. Any 

commissioner Tennessee removed for “misfeasance or nonfeasance” would be 

replaced in most counties by public officials (the two other publicly appointed 

commissioners, or if they could not agree, the county judge) or in large counties 

by an election. Id. That ensured every commissioner of the utility district 

would be publicly selected. None of Voices’ directors can be.4 

 

4 Louisiana law sets some eligibility criteria for a charter’s directors. For example, 

school employees may not serve and no more than 20% of the directors can be from the same 

immediate family. La. Rev. Stat. Ann. § 17:3991(A)(1)(c)(i)–(ii). And Voices’ charter requires 

that the board consist of at least seven members with diverse skill sets and that at least 60% 

live in the parish where the school is located. Although these conflict-of-interest and 

geographic constraints limit who can serve on the board, they do not mean that those who 

are selected are accountable to the public for their policy choices. See, e.g., Ky. River Cmty. 

Care, Inc. v. N.L.R.B., 193 F.3d 444, 451–52 (6th Cir. 1999) (determining that a nonprofit 

organization operating mental health facilities was not administered by individuals 

responsible to public officials or the general electorate despite the fact that Kentucky law 

required the board to “be representative of the community the corporation serves”).

 Case: 17-60364 Document: 00514652362 Page: 6 Date Filed: 09/21/2018
No. 17-60364

7

A recent NLRB ruling that a Texas charter school is a “political 

subdivision” illustrates the importance the Board places on whether the public 

has a role in selecting an entity’s policymakers. LTTS Charter Sch., Inc. d/b/a 

Universal Acad., 366 N.L.R.B. No. 38 (2018); see also The Penn. Virtual Charter 

Sch., 364 NLRB No. 87, at *9–11 (2016); Hyde Leadership Charter Sch., 364 

NLRB No. 88, at *6–7 (2016) (rejecting the “political subdivision” exemption 

for charter schools in Pennsylvania and New York that like Voices lack public 

accountability). What differed in that case is the Texas Education Agency 

retained “full authority to reconstitute” the charter school’s board. LTTS 

Charter Sch., Inc., 366 N.L.R.B. No. 38, at *3 (citing TEX. EDUC. CODE

§ 12.115). The state agency could remove board members for a host of reasons, 

including violations of the charter; fiscal malfeasance; student health and 

welfare concerns; violations of applicable laws or rules; failure to satisfy

performance standards; and insolvency. Id. Following any such removal, the 

state had “broad, and practically unreviewable, authority to reconstitute the 

Board,” which led the NLRB to conclude the charter was “administered by 

individuals who are responsible to public TEA officials.” Id. (citing TEX. EDUC.

CODE § 12.115).5

There is no way for the public to select the board members who set policy 

for Voices. We thus agree with the Board that Voices is “not administered by 

individuals who are responsible to public officials or to the general electorate.”6

 

5 We are not presented with and thus do not decide the question whether Texas 

charter schools are political subdivisions. We cite LTTS Charter School to show the emphasis 

the NLRB places on public involvement in selection and removal of policymakers.

6 Voices has never contended that it satisfies the Board’s first definition that treats 

entities created by the State as political subdivisions. An amicus makes that argument, but 

we do not consider arguments raised by an amicus that the party it is supporting never made. 

World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 752 n.3 (5th Cir. 

2009). In any event, we have held it is “self-evident” that a nonprofit corporation incorporated 

 Case: 17-60364 Document: 00514652362 Page: 7 Date Filed: 09/21/2018
No. 17-60364

8

See Natchez Trace Elec. Power Ass’n, 476 F.2d at 1045 (concluding that an 

electric power association was not “administered by individuals responsible to 

the public” because the directors of the corporation were named in the 

certificate of incorporation and successors were chosen by the corporation’s 

members). And we have already said that standard is faithful to the ordinary 

meaning of “political subdivision.” There may be some situations in which it 

is ambiguous whether an entity is subject to enough public control to make it 

a political subdivision of the state. This is not such a case. Louisiana does not 

control Voices. 

That brings us to Voices’ broader complaint. It argues that the Board 

ignored factors that demonstrate Voices’ political character even if it is not run 

by people the public selects. It relies on the public features of a utility district 

the Supreme Court identified in addressing whether it was a political 

subdivision. Hawkins Cty., 402 U.S. at 608–09. In addition to emphasizing 

that the “commissioners [] are beholden to an elected public official for their 

appointment, and are subject to removal procedures applicable to all public 

officials,” id. at 608, Hawkins County cites further indicators of political 

subdivision status such as the entity’s tax-exempt position, eminent domain 

power, and obligation to comply with open records laws, id. at 608–09. Voices 

contends that a number of those same factors demonstrate its political nature, 

including public funding, tax-exempt status, and being subject to open records 

laws.

Was it error for the NLRB to look solely at whether the public created 

Voices or controls its administrators in deciding whether the charter is a 

political subdivision of Louisiana? At a minimum, caselaw recognizes that that 

 

by private actors is not “a department or administrative arm of the government.” Highview, 

590 F.2d at 176.

 Case: 17-60364 Document: 00514652362 Page: 8 Date Filed: 09/21/2018
No. 17-60364

9

the direct questions the Board’s definition asks—(1) public creation or (2) 

public control—are the predominant considerations. Our first “political 

subdivision” case concluded that an electric power association was not exempt

because it did not meet either of those NLRB criteria. Natchez Trace Elec. 

Power Ass’n, 476 F.2d at 1045. Only then did it note as a “[f]urthermore” that 

the association also “possesse[d] few of the other characteristics which the 

Supreme Court deemed indicative of the Hawkins County Utility District’s 

public nature.” Id.

Our most recent case on this topic, which addressed the same exemption 

in the Occupational Safety and Health Act,7 discussed those factors only in a 

“we also note” footnote. StarTran, Inc. v. Occupational Safety & Health Review 

Comm’n, 608 F.3d 312, 321 n.12 (5th Cir. 2010). More important than that, 

StarTran observed that “[t]here are simply no . . . cases” rejecting political 

subdivision status for “an entity a majority of whose board of directors is 

selected and removable by public officials and whose principle executive 

officers are likewise selected and removable by public officials.” Id. at 324. The 

clincher is what StarTran emphasizes about the opposite situation, which is 

the one we confront: “if a majority of the board of directors of the claimed 

political subdivision is not subject to selection or removal by public officials or 

the general electorate, then the entity for that reason fails the second 

alternative test for being a[ ]political subdivision.” Id. at 323; see also Midwest 

Div.-MMC, LLC v. N.L.R.B., 867 F.3d 1288, 1297 (D.C. Cir. 2017) (“[T]he 

pertinent question is ‘whether a majority of the individuals who administer the 

entity . . . are appointed by and subject to removal by public officials.’” (quoting 

Pilsen Wellness Ctr., 359 N.L.R.B. 626, 628 (2013))); FiveCAP, Inc. v. N.L.R.B., 

 

7 We consider caselaw applying both exemptions because the statutory language is the 

same. StarTran, 608 F.3d at 323 n.14 (citing Brock v. Chi. Zoological Soc’y., 820 F.2d 909, 

910 (7th Cir. 1987)). 

 Case: 17-60364 Document: 00514652362 Page: 9 Date Filed: 09/21/2018
No. 17-60364

10

294 F.3d 768, 777 (6th Cir. 2002) (“An entity can only satisfy the second prong 

of Hawkins County by ensuring that a majority of its board of directors are 

directly responsible to the general electorate.”); Jefferson Cty. Cmty. Ctr. for 

Developmental Disabilities v. N.L.R.B., 732 F.2d 122, 126 (10th Cir. 1984)

(holding that an entity was not exempt as a political subdivision under section 

152(2) “although seven directors are appointed by public agencies” because “a 

majority of the Board is neither appointed by nor subject to removal by public 

officials or the general electorate and has no official connection to any 

governmental body”); Truman Med. Ctr., Inc. v. N.L.R.B., 641 F.2d 570, 572–

73 (8th Cir. 1981) (holding that a hospital was not exempt from NLRB 

jurisdiction because the majority of its board of directors was neither appointed 

nor subject to removal by public officials or the general public).

We thus cannot fault the Board for basing its decision on the 

appointment and removal power that has been the decisive factor in every 

reported judicial decision addressing “political subdivision” status under the 

NLRA or OSHA. See StarTran, 608 F.3d at 323; M. Edward Taylor, Note, The 

Political Subdivision Exemption of the National Labor Relations Act and the 

Board’s Discretionary Authority, 1982 DUKE L.J. 733, 739 n.37 (1982) (noting 

then that in no NLRB or judicial decision had Hawkins County’s “actual 

operations” factors resulted in a decision contrary to what the Board’s two-part 

test focused on public accountability counseled). That is especially so when 

Voices did not just have a majority of its board members selected without 

public input; private actors selected all of them.8 The additional factors 

Hawkins County noted may provide guidance to the Board and courts in some 

cases, perhaps those when there is both public and private influence over the 

 

8 We also note that not all of the additional factors point in favor of Voices being a 

political subdivision. Unlike the utility district in Hawkins County, Voices does not have 

eminent domain power. 

 Case: 17-60364 Document: 00514652362 Page: 10 Date Filed: 09/21/2018
No. 17-60364

11

policymakers. But in this case they cannot override the significance of the 

entirely private selection of school policymakers, a feature at odds with the 

ordinary conception of a political subdivision of a state.

Voices contends that a different result is warranted because of the 

“unique factual context” in which roughly 90% of public school students in New 

Orleans attend charters. Charters essentially are the public school system in 

New Orleans, it argues. We do not disagree, but the prevalence of charters 

does not transform them into politically accountable entities. It would make 

little sense if a charter located in northern Louisiana but otherwise identical 

to Voices were subject to federal labor law but Voices were exempt solely 

because it is in a city with a lot of other charters. Or imagine a scenario in 

which a legislature decided to privatize an entire state function, prisons for 

example. If those prisons were not subject to public control, we do not see why 

they would become political subdivisions just because they held all prisoners 

in the state. Nothing about the ordinary meaning of political subdivision turns 

on the prevalence of charter schools as opposed to their public accountability.

We recognize that charters like Voices are “independent public school[s]”

under Louisiana law and are treated as part of the public school system for 

some purposes. See La. Rev. Stat. Ann. § 17:3973(2)(a); Iberville Par. Sch. Bd. 

v. La. State Bd. of Elementary & Secondary Educ., 2017-0257, 2018 WL 

1319404, at *7 (La. Mar. 13, 2018) (rejecting challenge to public funding of 

charter schools). But that is not the same thing as saying they are political 

subdivisions of the state. The Louisiana Attorney General has recognized this 

distinction, concluding that “a charter school is not a political subdivision of 

the state.” La. Atty. Gen. Op. No. 04-0317, 2004 WL 2843115, at *3 (Nov. 23, 

2004) (addressing whether the Louisiana Open Meetings Law applied to a 

charter school). Indeed, the “independent” part of the state law label reflects 

their lack of political accountability. 

 Case: 17-60364 Document: 00514652362 Page: 11 Date Filed: 09/21/2018
No. 17-60364

12

That lack of political influence over Louisiana charters was a choice the 

legislature made in its enabling legislation. Private control was not a bug of 

that law; it was a reason for it. Because Louisiana chose to insulate its charters 

from the political process, Voices like most other privately controlled employers 

is subject to the National Labor Relations Act. 

* * *

Voices’ petition for review is DENIED. The Board’s cross-petition for 

enforcement is GRANTED.

 Case: 17-60364 Document: 00514652362 Page: 12 Date Filed: 09/21/2018
No. 17-60364

13

JAMES C. HO, Circuit Judge, concurring:

I agree with the National Labor Relations Board that the charter school 

operated by Voices for International Business and Education is subject to 

collective bargaining under the National Labor Relations Act.

Voices contends that its charter school is a “political subdivision” and 

thus exempt from the Act. But it seems obvious that charter schools are not 

“political subdivisions,” but private organizations—owned and operated by 

private citizens, not political officials. Indeed, charter schools are appealing to 

many parents and students precisely because they are not political 

subdivisions. As the majority nicely puts it: “Private control was not a bug of 

[the Louisiana charter school law]; it was a reason for it.” After all, one of the 

primary benefits of charter schools is the ability to harness private sector 

innovation and offer alternative educational opportunities unconstrained by 

politics. The parties seemed to acknowledge as much during oral argument. 

Oral Argument at 3:45–4:05 (appellant); 16:45–17:04 (appellee). Accordingly, 

I agree that the charter school operated by Voices is not a political subdivision, 

and I am pleased to join the majority opinion for that reason.

I nevertheless write separately to make clear that, although I agree with 

the Board’s ultimate conclusion in this case, I disagree with its reasoning. For 

the Board does not merely argue that it is faithfully following Congress’s 

directive. Rather, it asserts that we must defer to the Board’s decision. See, 

e.g., Br. of Appellee at 14 (“The Board’s interpretation of the Act must be 

upheld if reasonably defensible. . . . This deferential standard of review applies 

to every interpretation of the Act by the Board.”); Oral Argument at 25:15–20 

(claiming Board discretion to determine which entities are subject to the Act).

Charter schools are unambiguously private organizations, not political 

subdivisions. So I disagree with the Board’s request for deference to the extent 

 Case: 17-60364 Document: 00514652362 Page: 13 Date Filed: 09/21/2018
No. 17-60364

14

that it claims the power to reach the opposite result in another charter school 

case—for example, as the majority points out, the Board subjects Voices to 

collective bargaining, even as it attempts to exempt other charter schools from 

the Act. I therefore write separately to make clear that, by affirming the 

Board’s decision today, I do not bless the Board’s discretion to take the opposite 

view tomorrow. See, e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 982 (2005) (“A court’s prior judicial construction of a 

statute trumps an agency construction . . . if the prior court decision holds that 

its construction follows from the unambiguous terms of the statute and thus 

leaves no room for agency discretion.”).

Even in the age of Chevron, deference is not a blind commandment. 

Federal agencies must enforce the law as written by Congress. I concur.

I.

The Board claims it has the discretion to decide who is and is not a 

political subdivision—and thus which workers may or may not engage in 

collective bargaining—and that this Court must defer to its determination. 

This is the natural implication of the Board’s invocation of Chevron.

But under Chevron, we owe deference only to agency interpretations of 

ambiguous statutes. As Chevron sets forth, courts must generally construe 

ambiguity in statutory text as an implicit delegation of rulemaking authority 

to the agency. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 

U.S. 837, 843–44 (1984); see also United States v. Mead Corp., 533 U.S. 218, 

229 (2001); Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996) 

(“[T]he whole point of Chevron is to leave the discretion provided by the 

ambiguities of a statute with the implementing agency.”); D.R. Horton, Inc. v. 

NLRB, 737 F.3d 344, 356 (5th Cir. 2013) (“We give to the Board ‘judicial 

deference when it interprets an ambiguous provision of a statute that it 

administers.’”) (quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 536 (1992)).

 Case: 17-60364 Document: 00514652362 Page: 14 Date Filed: 09/21/2018
No. 17-60364

15

Absent statutory ambiguity, however, agencies do not have the authority 

to decide what the law shall be. So when an agency invokes Chevron deference 

where it does not belong (because the relevant statutory text is not ambiguous), 

it is not deferring to Congress’s exercise of legislative authority, but rather 

doing exactly the opposite—here, claiming for itself the power to grant or deny 

collective bargaining rights at particular workplaces.

This is no hypothetical concern. In this case, the Board asserts that

Louisiana charter schools are subject to collective bargaining, but that Texas

charter schools are not. See generally LTTS Charter Sch., Inc. d/b/a 

Universal Acad. & Kimberly Free, 366 NLRB No. 38 (Mar. 15, 2018); 

Supplemental Authority of Appellees (Mar. 19, 2018) (“Appellee 28(j)”); Oral 

Argument at 27:10–28:04. The Board attempts to distinguish charter schools

in Texas from those in Louisiana on the ground that “the Texas Education Code 

‘explicitly grants’ the Texas Commissioner of Education broad authority to 

‘reconstitut[e]’ the charter school’s governing board by appointing new 

members or retaining current ones.” Appellee 28(j) at 1–2 (citing LTTS, 366 

NLRB No. 38, at 1 n.1). But even if this means that, under certain conditions, 

Texas has the power to transform a private, nonprofit charter school into a 

political subdivision at some point in the future, it is far from clear how that 

makes the charter school a political subdivision today. To use an analogy: The 

majority correctly points out that Texas could theoretically privatize its prison 

system someday in the future. But that does not mean Texas prisons are not 

part of state government today. The distinction that the Board seeks to draw 

finds no support in any statutory text set forth by Congress.

There is no ambiguity here. Charter schools that are privately opened 

and privately operated by privately chosen board members are unambiguously 

private entities, not political subdivisions. Accordingly, Congress has directed 

that those workplaces shall be subject to collective bargaining under the Act. 

 Case: 17-60364 Document: 00514652362 Page: 15 Date Filed: 09/21/2018
No. 17-60364

16

Chevron affords the Board no authority to alter this determination. Under 

Chevron, only Congress has that power.

II.

Because the Board’s claim of deference is wrong under Chevron, its 

demand for judicial deference raises constitutional concerns as well.

Congress has the power to make laws, and courts have the power to 

interpret them. And the separation of these respective powers from one 

another, and from the Executive, is an essential principle of our Founding 

vision. See, e.g., Bond v. United States, 564 U.S. 211, 222 (2011) (“Separationof-powers principles are intended, in part, to protect each branch of 

government from incursion by the others. Yet the dynamic between and among 

the branches is not the only object of the Constitution’s concern. The structural 

principles secured by the separation of powers protect the individual as well.”).

Indeed, it is the consolidation of legislative and judicial power in 

executive agencies that has caused Chevron to be called into question by 

various Justices. See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2120–21 (2018) 

(Kennedy, J., concurring); Michigan v. E.P.A., 135 S. Ct. 2699, 2712–14 (2015) 

(Thomas, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58

(10th Cir. 2016) (Gorsuch, J., concurring).

As Justice Alito has recently reminded, of course, Chevron remains

binding Supreme Court precedent. See Pereira, 138 S. Ct. at 2129 (Alito, J., 

dissenting). But it nevertheless remains the duty of every court to apply 

Chevron correctly. Under Chevron, we do not owe every agency interpretation 

our “reflexive deference.” Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring). 

Courts “need not resort to Chevron deference” when “Congress has supplied a 

clear and unambiguous answer to the interpretive question at hand.” Id. at 

2113 (opinion of the Court). And that is particularly so when we are 

considering the boundaries of agency authority, as we are here. See City of 

 Case: 17-60364 Document: 00514652362 Page: 16 Date Filed: 09/21/2018
No. 17-60364

17

Arlington v. FCC, 569 U.S. 290, 307 (2013) (“The fox-in-the-henhouse 

syndrome is to be avoided . . . by taking seriously, and applying rigorously, in 

all cases, statutory limits on agencies’ authority. Where Congress has 

established a clear line, the agency cannot go beyond it; and where Congress 

has established an ambiguous line, the agency can go no further than the 

ambiguity will fairly allow.”).

Threshold questions like ambiguity under Chevron are not just 

perfunctory speedbumps. They are the means by which we are asked to 

apportion interpretive power between the judicial and executive branches, as 

well as legislative power between the legislative and executive branches. See 

Michigan, 135 S. Ct. at 2712 (Thomas, J., concurring) (“We most often describe 

Congress’ supposed choice to leave matters to agency discretion as an 

allocation of interpretive authority. But we sometimes treat that discretion as 

though it were a form of legislative power.”) (internal citations omitted).

Finding ambiguity where it does not exist—granting deference where it 

is not warranted—does not simply result in a nominal misallocation of power 

between different branches of government. It means that policymaking is no 

longer undertaken where it is most accountable to the people. And it means 

that government action is no longer undertaken in the manner that is most 

amenable to robust judicial review.

* * *

Our Founders did not separate power for its own sake, but to preserve 

liberty. Because the only way to preserve liberty is to constrain the exercise of 

power. So we separate power to limit power. By diffusing power across the 

three rival branches of government, we make it difficult for government to gang 

up on the citizen. For the Founders well understood that “‘[t]here can be no 

liberty where the legislative and executive powers are united in the same 

person, or body of magistrates,’ or, ‘if the power of judging be not separated 

 Case: 17-60364 Document: 00514652362 Page: 17 Date Filed: 09/21/2018
No. 17-60364

18

from the legislative and executive powers.’” THE FEDERALIST NO. 47 (James 

Madison) (quoting Baron de Montesquieu).

Accordingly, the Constitution divides power among the three branches,

and requires government to run the gauntlet in order to exercise the coercive 

power of the sovereign. First, lawmaking is located where it is most politically 

accountable, as it should be—in the hands of legislators elected by the people. 

Second, law enforcement is separated from lawmaking, to avoid mob rule—in 

a separate branch of government under the authority of executive officials 

accountable to the President. Third, we subject government action to review 

for legality by a judiciary that is independent of the other two branches.

Misuse of the Chevron doctrine means collapsing these three separated 

government functions into a single entity. So too with Chevron, to be sure. But 

the misuse of Chevron in this case abrogates separation of powers without even 

the fig leaf of Congressional authorization.

Under its vision, the Board exercises lawmaking power by deciding who 

shall and shall not be subject to collective bargaining. It exercises executive 

power by issuing orders requiring compliance by private parties. And it 

demands that the judiciary defer to its actions. In sum, the Board consolidates 

power into a single entity that is both unaccountable to the people via 

Congressional election and immune from robust judicial review. That is not 

how the Constitution is supposed to work—and when it comes to unambiguous 

laws, it is not how Chevron is supposed to work.

Congress has spoken clearly here. Charter schools are unambiguously 

private organizations, not political subdivisions. Accordingly, the Board’s 

claim of deference fails to comply with Chevron, never mind the Constitution. 

Only Congress can make law. So if law is to be made or changed, it must be 

done as the Constitution commands—through Article I, Section 7, not Article 

II, Section 2. I concur.

 Case: 17-60364 Document: 00514652362 Page: 18 Date Filed: 09/21/2018