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How to Think About the Removal Power

In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause authorizing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.

Introduction

Does the President have a constitutional power to remove executive branch subordinates? In a recent article entitled The Executive Power of Removal,1 1.See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023).Show More we joined the Supreme Court2 2.For recent cases, see Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020); Collins v. Yellen, 141 S. Ct. 1761 (2021).Show More in defending the proposition that Article II of the Constitution gives the President authority to remove executive officers, at least those who are presidentially appointed.3 3.See Myers v. United States, 272 U.S. 52 (1926). As explained, we did not address those officials performing functions for the territories and the District of Columbia—where Congress might have greater authority to structure administration. See Bamzai & Prakash, supra note 1, at 1802–18. Moreover, we did not dispute that a non-executive institution, like Congress, can initiate “removal” of an executive officer, say, by impeachment. See U.S. Const. art. II, § 4. And we bracketed the question of whether the President has similar removal authority over inferior officers appointed by others. See Bamzai & Prakash, supra note 1, at 1830–35.Show More Without such a power, it is hard to see how the President could exert control—on behalf of an electoral coalition—over the vast American bureaucracy. Without such a power, it is easy to see how a temporary coalition could entrench long-term control over the bureaucracy by creating an officer insulated from presidential control through, for example, the conferral of statutory life tenure with removal only by impeachment. The Constitution’s conferral of removal authority on the President thus has a deep and important connection to the concept that electoral majorities should be able to control the executive branch. In our previous article, we focused on historical sources that had embraced the perspective that the President has just such a power of removal.

In this Essay, we reply to a critique of that article—Removal Rehashed by Professors Andrea Katz and Noah Rosenblum.4 4.See Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023).Show More We part ways with their analysis in several significant respects. But despite our disagreements, we are grateful for the chance to sharpen our own thinking on these issues. Just as the hammer and the anvil forge the metal, so too in the realm of intellectual discovery the critic forces the author to refine arguments that would otherwise remain untested. In that spirit, we offer this reply. We continue to believe that, although our theory is not the only one possible, it best fits text, structure, history, and early practice, and is therefore preferable to the alternatives.

In contrast to our views, Katz and Rosenblum reject altogether the notion that the Constitution confers a removal power on the President.5 5.As best we can tell, Katz and Rosenblum do not concede that the President has a removal authority that Congress can regulate using the Necessary and Proper Clause. Thus, it appears to us that their view departs from the perspective of those, like Justice Kagan, who believe that the President possesses an indefeasible constitutional power to remove close military or diplomatic advisors, because the absence of such power would impede the President’s performance of his constitutional duties. See, e.g., Seila Law, 140 S. Ct. at 2233 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part).Show More Starting from that perspective, they advise that readers “will find little new” in our article6 6.Katz & Rosenblum, supra note 4, at 425.Show More—a refrain they repeat so many times and so fixatedly that it takes on the air of a government official advising a passerby to “move on; nothing to see here!”7 7.See id. at 404 (“We are not convinced that the Article says much that is new.”); id. (“[I]t was unclear to us which materials were new or what the new materials added.”); id. at 406 (arguing that “Bamzai and Prakash’s argument is not new”); id. at 416 (claiming that our argument “largely rehashes old arguments with old sources”); id. at 417 (“We are unsure what Bamzai and Prakash believe is new about their argument.”).Show More To be sure, if one starts from the premise, as Katz and Rosenblum do, that it is “intellectually indefensible” to believe that Article II grants a presidential removal authority,8 8.Id. at 405.Show More then we agree: there is nothing to see here. But for those who are more open-minded about one of the most significant (and historically, most debated) questions of the separation of powers, read on.9 9.Of course, feel free to read The Executive Power of Removal too.Show More For as we explain below, Katz and Rosenblum misdescribe several of our arguments and several of the underlying sources. The case for a presidential removal power is stronger than they are willing to acknowledge.

Consider, for example, one of Katz and Rosenblum’s claims about the historical pedigree of the President’s removal authority. They contend that “[t]he historian might wonder why th[e] argument [for an executive power of removal,] if once so widespread, disappeared so quickly.”10 10.Katz & Rosenblum, supra note 4, at 416. Parenthetically, as anyone familiar with history knows, arguments can come and go, such that even if an argument disappeared at some point, it would not necessarily dispose of a claim that the argument existed in, for example, the eighteenth and early nineteenth centuries. At any rate, Katz and Rosenblum’s assertion that our claim “disappeared” is contradicted by the very source that they cite.Show More To support their claim that the argument for a removal power “disappeared so quickly,” Katz and Rosenblum rely on a quotation from a 1916 book by Frank Goodnow providing that courts “have held that [the Vesting Clause] has little if any legal effect, and that for the most part it is to be explained by the powers which are later specifically mentioned.”11 11.Id. at 416 n.94 (quoting Frank J. Goodnow, Principles of Constitutional Government 88–89 (1916)).Show More But Katz and Rosenblum’s use of this quotation does not properly characterize Goodnow. Two pages after the quoted language, Goodnow explained that the “practice” with respect to removal is “that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.”12 12.Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.Frank J. Goodnow, Principles of Constitutional Government 91 (1916). As this language makes clear, Katz and Rosenblum simply misinterpret Goodnow. Even while questioning whether other presidential powers derived from the Vesting Clause, Goodnow plainly acknowledged that the executive power was thought to encompass removal. (We leave to one side the question of whether a 1916 disappearance would count as “quickly” following the Constitution’s adoption.)Show More Rather than demonstrating the “disappearance” of an “executive power of removal,” Goodnow’s 1916 book demonstrates how into the twentieth century, it was widely recognized that Article II conferred removal power on the President.13 13.In a 1905 book, Goodnow foreshadowed the perspective that he explicitly articulated in 1916. See Frank J. Goodnow, The Principles of the Administrative Law of the United States (1905). There, Goodnow described “the interpretation of the constitution made by the first Congress relative to the President’s power of removing officers” as having been “that the power of removal was a part of the executive power, and therefore belonged to the President.” Id. at 76. He claimed that this was “the recognized construction of the constitution” until the Civil War. Id.; see also id. at 77 (remarking that, after the repeal of the limits on presidential removal imposed by the Tenure of Office Act, “the early interpretation of the constitution must be regarded as the correct one at the present time” and describing the conferral of removal authority on the President as having “been of incalculable advantage in producing an efficient and harmonious national administration”). We might part ways with some of the details in Goodnow’s account, and we take no position on whether Goodnow expressed different views in other writings that we have not mentioned. At a minimum, however, these discussions from Goodnow’s 1905 and 1916 books flatly contradict Katz and Rosenblum’s assertion that the concept of an executive power of removal “disappeared . . . quickly.” Katz & Rosenblum, supra note 4, at 416.Show More Professor Goodnow once remembered what some modern historians have forgotten.

As we discuss below, this is not the only occasion where we part ways with Katz and Rosenblum’s characterization of our article or the underlying sources. Specifically, they spend a significant portion of their response on the question of removal under the Pennsylvania Constitution—claiming, for example, that “Pennsylvania’s charter made no mention of executive removal”14 14.Katz & Rosenblum, supra note 4, at 407 (citing Pa. Const. of 1776, §§ 20, 22–23, 30, 34).Show More and that a 1784 report by Pennsylvania’s Council of Censors “probably means nearly the opposite” of our characterization of it.15 15.Id. at 417–18.Show More Respectfully, we disagree. Katz and Rosenblum fail to recognize that the Pennsylvania Supreme Court explained at an early date that, despite the Pennsylvania Constitution’s silence, “it has been generally supposed, that the power of removal rested with the Governor, except in those cases where the tenure, was during good behavior.”16 16.Commonwealth ex rel. Lehman v. Sutherland, 3 Serg. & Rawle 145, 149 (Pa. 1817).Show More And they bury in a footnote a concession that a passage in the Censors’ Report “might be read to suggest that the Censors believed removal was ‘an executive power’ and so support Bamzai and Prakash’s argument.”17 17.Katz & Rosenblum, supra note 4, at 420 n.111.Show More As we explain at length below, their concession is appropriate; the Censors’ Report supports our position. And the early history of gubernatorial removal in Pennsylvania is itself a fascinating case study with parallels to federal removal practice.

In addition, Katz and Rosenblum claim we were mistaken to rely on data from a study by the political scientist Carl Fish to show how often presidents removed executive subordinates in the early Republic. They claim that many such removals occurred on appointment of a successor, because for positions requiring Senate advice and consent, “removal was incident to appointment: the appointment and confirmation of someone new removed the previous officeholder.”18 18.Id. at 421. As an initial matter, Katz and Rosenblum suggest that removals that occurred upon the appointment of a successor did not happen “in the way Bamzai and Prakash use the term in their Article.” Id. at 422. But that misdescribes our article, which purposefully did not take a position on how removal had to be accomplished. Cf. Bamzai & Prakash, supra note 1, at 1787 (discussing issues that might arise due to a dispute over the timing of a removal).Show More But leaving to one side that nothing in our claim turns on Fish’s precise number of removals (which we did not even cite), we explain below that, in high-profile instances, presidents removed executive subordinates without Senate participation. Katz and Rosenblum’s theory of removal-by-appointment fails to explain such removals. And as demonstrated by the at-pleasure commissions conferred on executive branch officials, along with statements by executive branch officers, it was certainly the view of many that presidents could unilaterally remove.

Our Essay proceeds as follows. In Part I, we set forth the analytical framework for a presidential removal power. At the risk of “rehashing”—which we now understand to be strictly verboten—we rely upon some of the same material we previously surfaced in The Executive Power of Removal. In Part II, we turn to a significant state-law antecedent to the federal Constitution—removal in the context of the Pennsylvania Constitution. This portion of the Essay introduces “new” sources and arguments from one State that might have played a role in the drafting of the federal Constitution.19 19.We use the word “new” with some trepidation, given how hawkishly it appears some of our interlocutors police that language.Show More In Part III, we address the role of early federal practice. Finally, in Part IV, we address some overarching methodological points.

  1.  See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023). ↑
  2.  For recent cases, see Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020); Collins v. Yellen, 141 S. Ct. 1761 (2021). ↑
  3.  See Myers v. United States, 272 U.S. 52 (1926). As explained, we did not address those officials performing functions for the territories and the District of Columbia—where Congress might have greater authority to structure administration. See Bamzai & Prakash, supra note 1, at 1802–18. Moreover, we did not dispute that a non-executive institution, like Congress, can initiate “removal” of an executive officer, say, by impeachment. See U.S. Const. art. II, § 4. And we bracketed the question of whether the President has similar removal authority over inferior officers appointed by others. See Bamzai & Prakash, supra note 1, at 1830–35. ↑
  4.  See Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404 (2023). ↑
  5.  As best we can tell, Katz and Rosenblum do not concede that the President has a removal authority that Congress can regulate using the Necessary and Proper Clause. Thus, it appears to us that their view departs from the perspective of those, like Justice Kagan, who believe that the President possesses an indefeasible constitutional power to remove close military or diplomatic advisors, because the absence of such power would impede the President’s performance of his constitutional duties. See, e.g., Seila Law, 140 S. Ct. at 2233 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). ↑
  6.  Katz & Rosenblum, supra note 4, at 425. ↑
  7.  See id. at 404 (“We are not convinced that the Article says much that is new.”); id. (“[I]t was unclear to us which materials were new or what the new materials added.”); id. at 406 (arguing that “Bamzai and Prakash’s argument is not new”); id. at 416 (claiming that our argument “largely rehashes old arguments with old sources”); id. at 417 (“We are unsure what Bamzai and Prakash believe is new about their argument.”). ↑
  8.  Id. at 405. ↑
  9.  Of course, feel free to read The Executive Power of Removal too. ↑
  10.  Katz & Rosenblum, supra note 4, at 416. Parenthetically, as anyone familiar with history knows, arguments can come and go, such that even if an argument disappeared at some point, it would not necessarily dispose of a claim that the argument existed in, for example, the eighteenth and early nineteenth centuries. At any rate, Katz and Rosenblum’s assertion that our claim “disappeared” is contradicted by the very source that they cite. ↑
  11.  Id. at 416 n.94 (quoting Frank J. Goodnow, Principles of Constitutional Government 88–89 (1916)). ↑
  12.  Here is Goodnow’s paragraph, which we quote in its entirety to allow readers to assess the relevant context:

    The United States Constitution, as we have seen, vests the executive power in a President. The meaning of the power thus granted is, however, to be obtained from the powers subsequently specifically enumerated. These are:

    1. The power to appoint all officers of the government except inferior officers, who, if so provided by law, may be appointed by their superiors or by the courts. This power, where not otherwise provided by law, is to be exercised with the approval of the Senate. No mention is made in the Constitution of any power of removal from office. All that is said with regard to the termination of office is contained in the provision with regard to impeachment, which is applicable to all civil officers, and that giving the judges a term of office during good behavior. The practice is, however, that the President has the power to remove arbitrarily almost all civil officers of the United States, not judges. This power has been recognized as belonging to the President as a part of the executive power granted to him.

    Frank J. Goodnow, Principles of Constitutional Government 91 (1916). As this language makes clear, Katz and Rosenblum simply misinterpret Goodnow. Even while questioning whether other presidential powers derived from the Vesting Clause, Goodnow plainly acknowledged that the executive power was thought to encompass removal. (We leave to one side the question of whether a 1916 disappearance would count as “quickly” following the Constitution’s adoption.) ↑

  13.  In a 1905 book, Goodnow foreshadowed the perspective that he explicitly articulated in 1916. See Frank J. Goodnow, The Principles of the Administrative Law of the United States (1905). There, Goodnow described “the interpretation of the constitution made by the first Congress relative to the President’s power of removing officers” as having been “that the power of removal was a part of the executive power, and therefore belonged to the President.” Id. at 76. He claimed that this was “the recognized construction of the constitution” until the Civil War. Id.; see also id. at 77 (remarking that, after the repeal of the limits on presidential removal imposed by the Tenure of Office Act, “the early interpretation of the constitution must be regarded as the correct one at the present time” and describing the conferral of removal authority on the President as having “been of incalculable advantage in producing an efficient and harmonious national administration”). We might part ways with some of the details in Goodnow’s account, and we take no position on whether Goodnow expressed different views in other writings that we have not mentioned. At a minimum, however, these discussions from Goodnow’s 1905 and 1916 books flatly contradict Katz and Rosenblum’s assertion that the concept of an executive power of removal “disappeared . . . quickly.” Katz & Rosenblum, supra note 4, at 416. ↑
  14.  Katz & Rosenblum, supra note 4, at 407 (citing Pa. Const. of 1776, §§ 20, 22–23, 30, 34). ↑
  15.  Id. at 417–18. ↑
  16.  Commonwealth ex rel. Lehman v. Sutherland, 3 Serg. & Rawle 145, 149 (Pa. 1817). ↑
  17.  Katz & Rosenblum, supra note 4, at 420 n.111. ↑
  18.  Id. at 421. As an initial matter, Katz and Rosenblum suggest that removals that occurred upon the appointment of a successor did not happen “in the way Bamzai and Prakash use the term in their Article.” Id. at 422. But that misdescribes our article, which purposefully did not take a position on how removal had to be accomplished. Cf. Bamzai & Prakash, supra note 1, at 1787 (discussing issues that might arise due to a dispute over the timing of a removal). ↑

  19.  We use the word “new” with some trepidation, given how hawkishly it appears some of our interlocutors police that language. ↑

Expanding Democracy: The Case for Enfranchising Noncitizens in Local Elections

In the wake of recent state-led movements to restrict voting rights in the United States, New York City passed a law expanding local voting rights. Intro 1867-A defines municipal elections as the “designation, nomination[,] and election process for the offices of mayor, comptroller, public advocate, city council member, and borough president.” This law limits “municipal voters” to lawful permanent residents and noncitizens authorized to work in the United States who have been residents of New York City for at least thirty consecutive days by the date of a given election and who meet all other voting registration requirements under election law. Intro 1867-A was subsequently struck down on appeal on February 21, 2024, when a New York appeals court held that it violated the New York State Constitution. This Essay is the first to argue that Fossella v. Adams should be reversed by proposing a reading of the New York Constitution that permits enfranchising noncitizens at the local level and providing a policy-driven analysis that supports this framework. This examination is especially important since the Fossella challenge is not unique to New York; instead, the movement to enfranchise noncitizens at the local election level is rapidly growing nationwide. Markedly, a comparable law was recently challenged without success in the United States District Court for the District of Columbia on similar grounds. Thus, Intro 1867-A’s future is pivotal in shaping the landscape of noncitizen voting rights in local elections.

Introduction

In the wake of state-led movements to curtail voting rights in the United States, New York City boldly enacted a law expanding local voting rights to enfranchise eligible noncitizens. In January 2020, City Council member Ydanis Rodriguez introduced Intro 1867-A, which, after a decisive 33-14 City Council vote, became law in January 2022.1 1.Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ].Show More Intro 1867-A created an uncommon novel class of “municipal voters” limited to (1) “lawful permanent residents” and (2) noncitizens “authorized to work” in the U.S. who (i) have been residents of New York City for at least thirty consecutive days before a given election and (ii) meet “all [other voting] qualifications” under “election law.”2 2.N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022).Show More As a result, eligible noncitizens are permitted to vote in elections for municipal offices but are expressly prohibited from voting for any state or federal office, political party position, or on any state or federal ballot question.3 3.Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR.Show More

This law stands out as unusual because it meaningfully increases New York State’s total number of voters by enfranchising approximately 800,000 noncitizens directly affected by municipal policies, thus empowering them with a voice they would not have otherwise possessed.4 4.Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN].Show More New York City is now the largest U.S. city to extend local voting rights to noncitizens, joining other municipalities including those in California, Maryland, and Vermont.5 5.Id.Show More

This significant change sparked immediate controversy. Two days after Intro 1867-A became law, a group of plaintiffs—including seventeen U.S. citizens, the New York Republican State Committee, and the Republican National Committee—filed a complaint in the New York Supreme Court challenging the validity of the law under the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.6 6.Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024).Show More The complaint alleged that Intro 1867-A would dilute U.S. citizens’ votes, including those of the voter plaintiffs, by introducing new voters likely to impact election outcomes.7 7.Id. at 619.Show More It also argued that the legislation would require the officeholder plaintiffs to revise their campaign tactics to account for this “sizeable change” in the electorate’s makeup and compel “the political party plaintiffs to ‘adjust their strategies’” to elect Republicans in New York.8 8.Id.Show More On June 27, 2022, the trial court granted the plaintiffs’ permanent injunction request in Fossella v. Adams, holding that the law violated the New York Constitution, New York Election Law, and the New York Municipal Home Rule Law.9 9.Id. at 618.Show More

The defendants subsequently challenged this injunction, and on February 21, 2024, a New York appeals court ruled that the lower court had correctly invalidated Intro 1867-A, determining it contravened the New York Constitution and the Municipal Home Rule Law.10 10.Id.Show More However, the appeals court identified an error in the trial court’s decision to void the legislation based on a violation of the New York Election Law, leading to a modification of the order and its return to the Supreme Court of Richmond County for entry of judgment.11 11.Id. at 634.Show More

In striking down the law as unconstitutional under Article II, Section 1 of the New York Constitution, the court focused on two inquiries: (1) whether “citizen” refers to U.S. citizens or New York citizens, and (2) whether “every election for all officers elected by the people” encompasses both municipal and statewide elections, or statewide elections exclusively.12 12.Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay.Show More The court adopted a narrow construction of the term “citizen” as used in the New York Constitution, interpreting it to refer only to U.S. citizens, thus excluding noncitizens.13 13.Id. at 627.Show More Further, it concluded that the plain language of Article II, Section 1 indicates that the clause covers both municipal and statewide elections, noting the lack of specific language to restrict its application to statewide elections only.14 14.Id.Show More The ruling has now been appealed to the state’s highest court.15 15.Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3].Show More

This Essay is the first to argue that Fossella v. Adams was wrongly decided and should be reversed by the New York Court of Appeals. Part I surveys the historical landscape of noncitizen suffrage in the United States. Part II posits a framework that supports reading the New York Constitution as enfranchising noncitizens at the local election level. Part III explores policy considerations that support this line of reasoning and refutes some of the concerns mentioned in Fossella.

These analyses hold particular importance given that the challenge posed by Fossella is not unique to New York; rather, the push for noncitizen enfranchisement at the local election level represents a rapidly growing trend across the United States. Notably, a comparable municipal law was challenged on vote-dilution grounds and upheld in the United States District Court for the District of Columbia.16 16.See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A].Show More Success on appeal is possible, as evidenced by similar laws that, despite being overturned at the lower court level, have later been upheld.17 17.In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023).Show More Although the outcomes of such cases will ultimately depend on their respective state laws, this Essay’s analysis of Fossella provides a workable framework pivotal in shaping the ongoing national project of noncitizen voting rights in local elections.

  1.  Int. 1867-2020, N.Y.C. Council (2022), https://legistar.council.nyc.gov/LegislationDetail.‌aspx?ID=4313327&GUID=DF600BDA-B675-41D8-A8BD-282C38DC4C62 [https://perma.‌cc/SR3F-VJQZ]. ↑
  2.  N.Y.C. Charter, ch. 46-A, § 1057-AA(a) (2022). ↑
  3.  Id. (defining “municipal office” as “the offices of mayor, public advocate, comptroller, borough president, and council member”); id. § 1057-RR. ↑
  4.  Els de Graauw, New York City Restores Local Voting Rights for Noncitizens, EUI Global Citizenship Observatory (Feb. 8, 2022), https://globalcit.eu/new-york-city-restores-local-vot‌ing-rights-for-noncitizens/ [https://perma.cc/6MDT-KMGN]. ↑
  5.  Id. ↑
  6.  Fossella v. Adams, 206 N.Y.S.3d 611, 618 (2024). ↑
  7.  Id. at 619. ↑
  8.  Id. ↑
  9.  Id. at 618. ↑
  10.  Id. ↑
  11.  Id. at 634. ↑
  12.  Id. at 626–27. The court also discussed the plaintiffs’ standing and Intro 1867-A’s constitutionality under New York Election Law and the New York Municipal Home Rule Law, but these issues are beyond the scope of this Essay. ↑
  13.  Id. at 627. ↑
  14.  Id. ↑
  15.  Emily Ngo, New York City Council Appeals Decision to Strike Down Non-Citizen Voting Law, Politico (Mar. 25, 2024, 1:57 PM), https://www.politico.com/news/2024/03/25/‌new-york-city-council-appeals-decision-to-strike-down-non-citizen-voting-law-00148854 [https://perma.cc/3AKU-8NX3]. ↑
  16.  See, e.g., Hall v. D.C. Bd. of Elections, No. 23-cv-01261, 2024 WL 1212953 (D.D.C. Mar. 20, 2024). In Hall, petitioners challenged D.C. Act 26-640, which eliminates the prior citizenship requirement for voting in municipal elections, and argued that this law dilutes the vote of U.S. citizen voters in the District by enfranchising noncitizens, including undocumented ones, who do not have a fundamental right to vote in the United States nor a constitutional right to govern the United States. Id. at *3–5. Intro-1867-A differs from D.C. Act 26-640 as it does not apply to the estimated 500,000 undocumented immigrants residing in New York City. On March 20, 2024, Hall was dismissed on standing grounds, so the D.C. Act was upheld. Hall, 2024 WL 1212953, at *1. However, the U.S. House of Representatives recently voted to block Act 26-640, so it will not take effect. Meagan Flynn, House Votes to Block Noncitizen Voting in D.C. Elections—Again, Wash. Post (May 23, 2024), https://www.‌washingtonpost.com/dc-md-va/2024/05/23/house-vote-dc-noncitizen-voting/ [https://perma.‌cc/L7NR-PT8A]. ↑

  17.  In 2018, San Francisco implemented a law permitting eligible noncitizens to participate in school board elections. This law was overturned in July 2022 when the San Francisco Superior Court ruled that it contravened the California Constitution. See Lacy v. San Francisco, No. CPF-22-517714, slip op. at 2, 7 (Cal. Super. Ct. July 29, 2022). However, in 2023, an appellate court reversed and remanded, finding that charter cities possess the authority under the California Constitution to allow noncitizens to vote in school board elections. See Lacy v. San Francisco, 312 Cal. Rptr. 3d 391, 398, 413 (Cal. Ct. App. 2023). ↑

Standing Shoulder Pad to Shoulder Pad: Collective Bargaining in College Athletics

Responding to the professionalization of their billion-dollar industry, college athletes have embraced collective bargaining as an avenue for addressing their grievances with universities and the National Collegiate Athletics Association (NCAA). The movement toward unionization has culminated in two cases: an unfair labor practice charge from the University of Southern California’s (USC) football and basketball teams and a representation petition from Dartmouth College’s men’s basketball team. These filings with the National Labor Relations Board (NLRB) will determine whether college athletes are “employees” under the National Labor Relations Act (NLRA). If the NLRA covers them, then they will be able to unionize and collectively bargain under federal law. This Essay advances the debate surrounding college athletes’ status by arguing that the NLRB should exercise its rulemaking power to establish a comprehensive standard for determining whether particular athletes qualify as “employees.” It arrives at this conclusion after demonstrating how USC’s and Dartmouth’s athletes likely pass the statutory test for employee status. Since the NLRB explicitly considers policy concerns as it decides when to extend jurisdiction, the Board will need to determine whether the NLRA should cover college athletes and, if so, how coverage should be delineated. Given the need to protect athletes while promoting stability in labor relations, the NLRB should craft clear guidelines through rulemaking instead of piecemeal adjudication. The Essay concludes by offering a model rule that illustrates how the NLRB could formulate and implement a framework that Board agents can apply to athletes across NCAA divisions and sports.

Introduction

Far attenuated from its original status as an extracurricular activity, college athletics has evolved into an industry that increasingly eschews amateurism for professionalization. In 2019, Division I universities’ revenue exceeded $15 billion.1 1.See Andrew Zimbalist, Analysis: Who Wins With College Sports?, Econofact (Jan. 22, 2023), https://econofact.org/who-wins-with-college-sports [https://perma.cc/W9KG-3V42].Show More Billion-dollar television deals have replaced traditional rivalries with new conferences that span the country.2 2.See Billy Witz, Conferences Are Changing. The Sport Is, Too., N.Y. Times (Sept. 1, 2023), https://www.nytimes.com/2023/09/01/sports/ncaafootball/college-football-preview-re‌alignment-big12-bigten-acc-pac12-bigten.html [https://perma.cc/W9KG-3V42].Show More Deion Sanders and other coaches treat their athletes like professional free agents, using the transfer portal to unilaterally force transfers and overhaul rosters.3 3.See Mike McDaniel, Colorado Players in Transfer Portal Detail Troubling Team Dynamic Under Deion Sanders, Sports Illustrated (Apr. 26, 2023), https://www.si.com/college/2023/‌04/26/colorado-players-transfer-portal-detail-troubling-team-dynamic-under-deion-sanders [https://perma.cc/N2PN-2VMY].Show More Meanwhile, in NCAA v. Alston,4 4.141 S. Ct. 2141 (2021).Show More the Supreme Court ruled that the NCAA cannot cite “amateurism” as a justification for its evasion of antitrust law and its compensation restrictions.5 5.See id. at 2162–63 (“Firms deserve substantial latitude to fashion agreements that serve legitimate business interests—agreements that may include efforts aimed at introducing a new product into the marketplace. But none of that means a party can relabel a restraint as a product feature and declare it ‘immune from § 1 scrutiny.’” (internal citation omitted) (quoting Am. Needle, Inc. v. NFL, 560 U.S. 183, 199 n.7 (2010)).Show More In his concurrence, Justice Brett Kavanaugh rejected the traditional conception of college athletics, asserting that “the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product.”6 6.See id. at 2168–69 (Kavanaugh, J., concurring) (arguing that the Court’s ruling should be extended to strike down the NCAA’s entire apparatus of compensation restrictions).Show More The NCAA and universities have responded to the Court’s rebuke by adopting name, image, and likeness (NIL) policies that further diminish amateurism as college sports’ lodestar.7 7.See Andrew Brandt, Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (June 29, 2021), https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling [https://perma.cc/N2PN-2VMY].Show More

As college athletics has become more professionalized, players’ grievances with their universities and the NCAA remain entrenched and unaddressed. Even though football and basketball players’ performances generate revenue for “Power Five” conference schools, those institutions effectively divert any potential compensation for players toward coaches and administrators.8 8.See Craig Garthweite, Jordan Keener, Matthew J. Notowidigdo & Nicole F. Ozminkowski, Who Profits From Amateurism? Rent-Sharing in Modern College Sport 4–6, 26–28 (Nat’l Bureau of Econ. Rsch., Working Paper No. 27734, 2020), https://www.nber.org/papers/w277‌34 [https://perma.cc/QL9N-F9NV].Show More Annual wage estimates for these athletes exceed six figures, highlighting the amount of wealth players are denied despite their labor and athletic performance.9 9.See id. at 6, 49–50.Show More Some athletes may secure name, image, and likeness (NIL) deals that alleviate their lack of compensation. However, the median NIL deal in 2021 was worth only $53 per athlete.10 10.SeeErica Hunzinger, One Year of NIL: How Much Have Athletes Made?, Associated Press (July 6, 2022, 4:57 PM), https://apnews.com/article/college-football-sports-basketball-6a4a3270d02121c1c37869fb54888ccb [https://perma.cc/6ZZ4-XSAV].Show More Although NCAA leaders are planning to permit some form of direct compensation,11 11.See Ralph D. Russo, NCAA President Charlie Baker Calls for New Tier of Division I Where Schools Can Pay Athletes, Associated Press(Dec. 5, 2023, 4:48 PM), https://apnews.‌com/article/ncaa-baker-nil-c26542c528df277385fea7167026dbe6 [https://perma.cc/D6A7-Y‌AL8]. Virginia also amended its NIL laws in April 2024 to facilitate direct compensation by universities for the “use” of a student-athlete’s “name, image, or likeness,” which could spur further policy changes by the NCAA and other states. Act of Apr. 17, 2024, ch. 837, 2024 Va. Legis. Serv. 837 (West).Show More these policies fail to address players’ health and safety concerns. Like workers in other industries, football players and other athletes have highlighted the lack of proper medical care and insurance benefits as top reasons for organizing.12 12.See Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights: Before the Subcomm. on Innovation, Data, & Com. of the H. Comm. on Energy & Com., 118th Cong. 2–7 (2023) (written testimony of Jason Stahl, Executive Director, College Football Players Association) [hereinafter Taking the Buzzer Beater]; see also The Real News Network, College Football Is Dangerous. Unions Can Fix It., YouTube (Sept. 20, 2023) (featuring Stahl describing the primacy of health and safety concerns among football players—from 12:59–14:19), https://www.youtube.com/watch?v=GoCnmzewbdg [https://per‌ma.cc/K326-FC5M].Show More The formation of transcontinental athletic conferences will only heighten these burdens on athletes across all sports, as the new travel requirements will likely hinder athletes’ recovery, academic performance, and mental health.13 13.See Amanda L. Paule-Koba, It Affects Everything We Do: Collegiate Athletes’ Perceptions of Sport-Related Travel, J. Study of Sports & Athletes in Educ. 1, 11–14 (Dec. 2021), https://doi.org/10.1080/19357397.2021.2018637 [https://perma.cc/4FX9-E468].Show More Athletes are thus suffering from decisions that universities, athletic conferences, and the NCAA made without player input.

Collective bargaining has emerged as a mechanism for players to advocate for improved conditions and participation in policymaking. Groups of current and former athletes, like the National College Players Association (NCPA) and College Football Players Association (CFBPA), have worked alongside labor unions to organize teams.14 14.See About the NCPA, Nat’l Coll. Players Ass’n, https://www.ncpanow.org/about-us [https://perma.cc/3NJS-WWSE] (last visited Mar. 25, 2024); Taking the Buzzer-Beater, supra note 12, at 2–6, 10.Show More In Northwestern University,15 15.362 N.L.R.B. 1350 (2015).Show More the NLRB declined to hold an election for Northwestern’s football players by refusing to extend jurisdiction over them,16 16.See id. at 1352.Show More yet the Board did not categorically exclude college athletes from NLRA coverage.17 17.See id. at 1355.Show More As a result, momentum toward unionization has accelerated. The CFBPA emerged from player-driven advocacy in 2020 with the goal of organizing chapters at different universities to advocate for collective bargaining.18 18.See Taking the Buzzer-Beater, supra note 12, at 2–6, 10; The Real News Network, supra note 12.Show More Congressional representatives introduced legislation in 2021 to codify the right for college athletes to collectively bargain,19 19.See College Athlete Right to Organize Act, S. 1929, 117th Cong. (2021).Show More and even athletic directors have endorsed some form of bargaining power for players.20 20.Name, Image, and Likeness and the Future of College Sports: Before the S. Comm. on Jud., 118th Cong. 3–4 (2023) (written testimony of Jack Swarbrick, Vice President & James E. Rohr Director of Athletics, University of Notre Dame).Show More

Years of organizing and advocacy have coalesced into two pending cases that could establish coverage for student athletes under the NLRA.21 21.On April 18, 2024, the College Basketball Players Association filed an unfair labor practice charge with the NLRB on behalf of players at the University of Notre Dame. This matter could develop in another case, pending the NLRB regional office’s investigation and subsequent proceedings. Unfair Labor Complaint Filed Against Notre Dame Over Athletes, Associated Press (Apr. 18, 2024, 10:07 PM), https://apnews.com/article/notre-dame-labor-complaint-athletes-c8db80b033bae8c930a32f2b21bf312d [https://perma.cc/U6H2-75NU]. Although other charges and matters relating to college athletes may be pending in NLRB regional offices, this Essay only addresses the two central cases in front of the Board and its administrative judges.Show More In 2023, the NLRB issued an unfair labor practice complaint against USC, the Pac-12 athletic conference, and the NCAA on behalf of USC’s football and basketball players.22 22.See Complaint & Notice of Hearing, Univ. of S. Cal., Case No. 31-CA-290326 (NLRB Div. of Judges argued Nov. 7, 2023).Show More Meanwhile, the men’s basketball team at Dartmouth filed for a union election.23 23.See Signed RC Petition, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (filed Sept. 13, 2023).Show More After the NLRB regional director ruled in February 2024 that the Dartmouth election could proceed,24 24.See Decision & Direction of Election at 22, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 5, 2024) [hereinafter Decision and Direction of Election].Show More the players voted 13-2 to unionize.25 25.See Jesse Dougherty, After a Historic Union Vote at Dartmouth, What’s Next for College Sports?, Wash. Post (Mar. 5, 2024, 1:20 PM), https://www.washingtonpost.com/sports/2024/‌03/05/dartmouth-mens-basketball-union/ [https://perma.cc/253M-5XWF].Show More Dartmouth has appealed the official’s determination, setting the stage for the Board to consider the issue.26 26.See Trs. of Dartmouth Coll.’s Request for Rev. of the Reg’l Dir.’s Decision and Direction of Election at 1, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 2024) [hereinafter Trs. of Dartmouth College’s Request for Review]. Sian Beilock, President of Dartmouth College, has also declared that Dartmouth will “go all the way to the Supreme Court if that’s what it takes” to “prevent this misguided development.” Sian L. Beilock, Opinion, Dartmouth Will Oppose Its Basketball Team Union, Wall St. J. (Apr. 12, 2024, 1:47 PM), https://www.wsj.com/articles/dartmouth-will-bust-its-basketball-union-colle‌ge-sports-labor-5eb1fc1e [https://perma.cc/BRJ2-FRMX].Show More If the NLRB upholds this decision and finds that these athletes are “employees” under the NLRA, the Board would extend the Act’s protections to college athletes and enable unionization under federal law.

Commentators have long argued about whether college athletes, particularly football players, are “employees” under the NLRA.27 27.See, e.g., Joshua Hernandez, The Largest Wave in the NCAA’s Ocean of Change: The “College Athletes are Employees” Issue Reevaluated, 33 Marq. Sports L. Rev. 781, 783 (2023) (arguing that college athletes are statutorily “employees” but cautioning against coverage on policy grounds); César F. Rosado Marzán & Alex Tillett-Saks, Work, Study, Organize!: Why the Northwestern University Football Players Are Employees Under the National Labor Relations Act, 32 Hofstra Lab. & Emp. L.J. 301, 305–06 (2015) (arguing that the NLRB should permit the Northwestern football players’ representation election to proceed because they are “employees” under the NLRA); Stephen L. Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev. 65, 65 (2014) (asserting that an affirmative finding of employee status under the NLRA or other employment statutes is “inevitable” due to the numerosity of interested parties and applicable laws).Show More Some scholars have even addressed the issue post-Alston.28 28.See, e.g., Hernandez, supra note 27, at 796–97; Amanda L. Jones, The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice, 116 Nw. U. L. Rev. 1319, 1324–26 (2022) (advocating for Congress to pass legislation to permit college athletes to collectively bargain); John Wolohan, A Reexamination of College Athletes: Are Athletes Students or Employees?,53 U. Mem. L. Rev. 835, 838 (2023) (applying the “economic reality” test to college athletes in light of Alston and recent General Counsel memos); Jennifer A. Shults, If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status, 56 Colum. J.L. & Soc. Probs. 451, 483 (2023) (arguing that Alston has helped bridge the gap between college athletes and employee status under the Fair Labor Standards Act and the NLRA).Show More However, scholarship has not accounted for these new cases and the questions they raise for all college athletes. Increasing momentum toward “employee” status warrants a forward-looking analysis of whether the NLRB should expand coverage to college athletes across all sports and divisions and how it could establish a comprehensive standard for the industry.

This Essay answers these questions by advocating for the NLRB to issue a formal rule that establishes a comprehensive standard for determining the NLRA’s coverage of athletes across all sports and divisions. This proposal emerges from an analysis of current cases before the Board and the challenge of establishing a clear rule through the adjudication of these disputes. Part I briefly summarizes the arguments presented by the parties in each case. Part II then applies the NLRA’s statutory test and concludes that each group of athletes qualifies as employees under the Act’s language. Part III considers the NLRB’s policy approach to labor law coverage and demonstrates that policy considerations do not warrant coverage exemptions in these cases. However, these policies also show how difficult it will be to develop a comprehensive standard—one that can apply to all athletes—through the adjudication of these cases. Part IV highlights this challenge and argues that the NLRB should exercise its rulemaking authority to establish a standard that can apply to all athletes. Part V concludes the Essay by presenting a model rule that extends coverage to athletes who need NLRA protections.

  1.  See Andrew Zimbalist, Analysis: Who Wins With College Sports?, Econofact (Jan. 22, 2023), https://econofact.org/who-wins-with-college-sports [https://perma.cc/W9KG-3V42]. ↑

  2.  See Billy Witz, Conferences Are Changing. The Sport Is, Too., N.Y. Times (Sept. 1, 2023), https://www.nytimes.com/2023/09/01/sports/ncaafootball/college-football-preview-re‌alignment-big12-bigten-acc-pac12-bigten.html [https://perma.cc/W9KG-3V42]. ↑

  3.  See Mike McDaniel, Colorado Players in Transfer Portal Detail Troubling Team Dynamic Under Deion Sanders, Sports Illustrated (Apr. 26, 2023), https://www.si.com/college/2023/‌04/26/colorado-players-transfer-portal-detail-troubling-team-dynamic-under-deion-sanders [https://perma.cc/N2PN-2VMY]. ↑

  4.  141 S. Ct. 2141 (2021). ↑

  5.  See id. at 2162–63 (“Firms deserve substantial latitude to fashion agreements that serve legitimate business interests—agreements that may include efforts aimed at introducing a new product into the marketplace. But none of that means a party can relabel a restraint as a product feature and declare it ‘immune from § 1 scrutiny.’” (internal citation omitted) (quoting Am. Needle, Inc. v. NFL, 560 U.S. 183, 199 n.7 (2010)). ↑

  6.  See id. at 2168–69 (Kavanaugh, J., concurring) (arguing that the Court’s ruling should be extended to strike down the NCAA’s entire apparatus of compensation restrictions). ↑

  7.  See Andrew Brandt, Business of Football: The Supreme Court Sends a Message to the NCAA, Sports Illustrated (June 29, 2021), https://www.si.com/nfl/2021/06/29/business-of-football-supreme-court-unanimous-ruling [https://perma.cc/N2PN-2VMY]. ↑

  8.  See Craig Garthweite, Jordan Keener, Matthew J. Notowidigdo & Nicole F. Ozminkowski, Who Profits From Amateurism? Rent-Sharing in Modern College Sport 4–6, 26–28 (Nat’l Bureau of Econ. Rsch., Working Paper No. 27734, 2020), https://www.nber.org/papers/w277‌34 [https://perma.cc/QL9N-F9NV]. ↑

  9.  See id. at 6, 49–50. ↑

  10.  See Erica Hunzinger, One Year of NIL: How Much Have Athletes Made?, Associated Press (July 6, 2022, 4:57 PM), https://apnews.com/article/college-football-sports-basketball-6a4a3270d02121c1c37869fb54888ccb [https://perma.cc/6ZZ4-XSAV]. ↑

  11.  See Ralph D. Russo, NCAA President Charlie Baker Calls for New Tier of Division I Where Schools Can Pay Athletes, Associated Press

     

    (Dec. 5, 2023, 4:48 PM), https://apnews.‌com/article/ncaa-baker-nil-c26542c528df277385fea7167026dbe6 [https://perma.cc/D6A7-Y‌AL8]. Virginia also amended its NIL laws in April 2024 to facilitate direct compensation by universities for the “use” of a student-athlete’s “name, image, or likeness,” which could spur further policy changes by the NCAA and other states. Act of Apr. 17, 2024, ch. 837, 2024 Va. Legis. Serv. 837 (West). ↑

  12.  See Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights: Before the Subcomm. on Innovation, Data, & Com. of the H. Comm. on Energy & Com., 118th Cong. 2–7 (2023) (written testimony of Jason Stahl, Executive Director, College Football Players Association) [hereinafter Taking the Buzzer Beater]; see also The Real News Network, College Football Is Dangerous. Unions Can Fix It., YouTube (Sept. 20, 2023) (featuring Stahl describing the primacy of health and safety concerns among football players—from 12:59–14:19), https://www.youtube.com/watch?v=GoCnmzewbdg [https://per‌ma.cc/K326-FC5M]. ↑

  13.  See Amanda L. Paule-Koba, It Affects Everything We Do: Collegiate Athletes’ Perceptions of Sport-Related Travel

    ,

    J. Study of Sports & Athletes in Educ

    .

    1, 11–14 (Dec. 2021), https://doi.org/10.1080/19357397.2021.2018637 [https://perma.cc/4FX9-E468]. ↑

  14.  See About the NCPA, Nat’l Coll. Players Ass’n, https://www.ncpanow.org/about-us [https://perma.cc/3NJS-WWSE] (last visited Mar. 25, 2024); Taking the Buzzer-Beater, supra note 12, at 2–6, 10. ↑

  15.  362 N.L.R.B. 1350 (2015). ↑

  16.  See id. at 1352. ↑

  17.  See id. at 1355. ↑

  18.  See Taking the Buzzer-Beater, supra note 12, at 2–6, 10; The Real News Network, supra note 12. ↑

  19.  See College Athlete Right to Organize Act, S. 1929, 117th Cong. (2021). ↑

  20.  Name, Image, and Likeness and the Future of College Sports: Before the S. Comm. on Jud., 118th Cong. 3–4 (2023) (written testimony of Jack Swarbrick, Vice President & James E. Rohr Director of Athletics, University of Notre Dame). ↑

  21.  On April 18, 2024, the College Basketball Players Association filed an unfair labor practice charge with the NLRB on behalf of players at the University of Notre Dame. This matter could develop in another case, pending the NLRB regional office’s investigation and subsequent proceedings. Unfair Labor Complaint Filed Against Notre Dame Over Athletes, Associated Press (Apr. 18, 2024, 10:07 PM), https://apnews.com/article/notre-dame-labor-complaint-athletes-c8db80b033bae8c930a32f2b21bf312d [https://perma.cc/U6H2-75NU]. Although other charges and matters relating to college athletes may be pending in NLRB regional offices, this Essay only addresses the two central cases in front of the Board and its administrative judges. ↑

  22.  See Complaint & Notice of Hearing, Univ. of S. Cal., Case No. 31-CA-290326 (NLRB Div. of Judges argued Nov. 7, 2023). ↑

  23.  See Signed RC Petition, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (filed Sept. 13, 2023). ↑

  24.  See Decision & Direction of Election at 22, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 5, 2024) [hereinafter Decision and Direction of Election]. ↑

  25.  See Jesse Dougherty, After a Historic Union Vote at Dartmouth, What’s Next for College Sports?, Wash. Post (Mar. 5, 2024, 1:20 PM), https://www.washingtonpost.com/sports/2024/‌03/05/dartmouth-mens-basketball-union/ [https://perma.cc/253M-5XWF]. ↑

  26.  See Trs. of Dartmouth Coll.’s Request for Rev. of the Reg’l Dir.’s Decision and Direction of Election at 1, Trs. of Dartmouth Coll., Case No. 01-RC-325633 (NLRB Reg’l Dir. decided Feb. 2024) [hereinafter Trs. of Dartmouth College’s Request for Review]. Sian Beilock, President of Dartmouth College, has also declared that Dartmouth will “go all the way to the Supreme Court if that’s what it takes” to “prevent this misguided development.” Sian L. Beilock, Opinion, Dartmouth Will Oppose Its Basketball Team Union, Wall St. J. (Apr. 12, 2024, 1:47 PM), https://www.wsj.com/articles/dartmouth-will-bust-its-basketball-union-colle‌ge-sports-labor-5eb1fc1e [https://perma.cc/BRJ2-FRMX]. ↑

  27.  See, e.g., Joshua Hernandez, The Largest Wave in the NCAA’s Ocean of Change: The “College Athletes are Employees” Issue Reevaluated, 33 Marq. Sports L. Rev. 781, 783 (2023) (arguing that college athletes are statutorily “employees” but cautioning against coverage on policy grounds); César F. Rosado Marzán & Alex Tillett-Saks, Work, Study, Organize!: Why the Northwestern University Football Players Are Employees Under the National Labor Relations Act, 32 Hofstra Lab. & Emp. L.J

    .

    301, 305–06 (2015) (arguing that the NLRB should permit the Northwestern football players’ representation election to proceed because they are “employees” under the NLRA); Stephen L. Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. Miami L. Rev. 65, 65 (2014) (asserting that an affirmative finding of employee status under the NLRA or other employment statutes is “inevitable” due to the numerosity of interested parties and applicable laws). ↑

  28.  See, e.g., Hernandez, supra note 27, at 796–97; Amanda L. Jones, The Dawn of a New Era: Antitrust Law vs. the Antiquated NCAA Compensation Model Perpetuating Racial Injustice, 116 Nw. U. L. Rev. 1319, 1324–26 (2022) (advocating for Congress to pass legislation to permit college athletes to collectively bargain); John Wolohan, A Reexamination of College Athletes: Are Athletes Students or Employees?, 53 U. Mem. L. Rev. 835, 838 (2023) (applying the “economic reality” test to college athletes in light of Alston and recent General Counsel memos); Jennifer A. Shults, If at First You Don’t Succeed, Try, Try Again: Why College Athletes Should Keep Fighting for “Employee” Status, 56 Colum. J.L. & Soc. Probs

    .

    451, 483 (2023) (arguing that Alston has helped bridge the gap between college athletes and employee status under the Fair Labor Standards Act and the NLRA). ↑

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