158
Breyer, J., dissenting
federal agencies." Ante, at 146. But it does not explain why this matters when, as here, the Attorney General, whose Department—through the Immigration and Naturalization Service—administers the immigration statutes, supports the Board's order. Nor does it explain why the perjury statute at issue in ABF Freight was not a "statute . . . administered by" another "agenc[y]." See 510 U. S., at 329 (Scalia, J., concurring in judgment) (noting Department of Justice officials' responsibility for prosecuting perjury).
The Court concludes that the employee misconduct at issue in ABF Freight, "though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal." Ante, at 146. But this conclusion rests upon an implicit assumption—the assumption that the immigration laws' ban on employment is not compatible with a backpay award. And that assumption, as I have tried to explain, is not justified. See supra, at 155-157.
At the same time, the two earlier cases upon which the Court relies, NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), and Southern S. S. Co. v. NLRB, 316 U. S. 31, 47 (1942), offer little support for its conclusion. The Court correctly characterizes both cases as ones in which this Court set aside the Board's remedy (more specifically, reinstatement). Ante, at 142-144. But the Court does not focus upon the underlying circumstances—which in those cases were very different from the circumstances present here. In both earlier cases, the employer had committed an independent unfair labor practice—in the one by creating a company union, Fansteel, supra, at 250, in the other by refusing to recognize the employees' elected representative, Southern S. S. Co., supra, at 32-36, 48-49. In both cases, the employees had responded with unlawful acts of their own—a sit-in and a mutiny. Fansteel, supra, at 252; Southern S. S. Co., supra, at 48. And in both cases, the Court held that the employees' own unlawful conduct provided the employer with "good cause" for discharge, severing any con-
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