Administrative Law

  • May 20, 2011

    Large, crafty American corporations helped cause the nation’s Great Recession, and then many of them got bailed out by taxpayers. Very few of those corporations – think Goldman Sachs – have been held accountable for their actions. So maybe it’s not surprising that corporations and their lobbyists are quickly back to their tired machinations of doing everything to solidify the status quo, which means free reign to make gobs of money by bilking consumers and hobbling the rights workers while remaining above the law.

    Take for example the hue-and-cry emanating from rightwing lawmakers and pundits over the National Labor Relations Board’s (NLRB) recent decision to lodge a complaint against Boeing for appearing to retaliate against workers at its Washington State plant once they announced plans to strike. Part of the complaint accuses of Boeing of establishing a nonunion production outfit in South Carolina to retaliate against the unionized workers in Washington State.

    The NLRB is an independent agency charged with enforcing the National Labor Relations Act (NLRA), which makes it illegal for corporations to retaliate or discriminate against workers who engage in lawful activity, such as striking. A trial before an Administration Law Judge is set for June. But the rightwing and its enablers in Congress have launched a tirade against the NLRB, including threats to demolish the agency.

    American Rights at Work Executive Director Kimberly Freeman Brown notes in this post for The Hill’s Congress Blog, “Regardless of the facts, GOP legislators are using the case as an excuse to advance their ongoing attack on the NLRB. Politicians like Rep. Phil Roe (R-Tenn.), Rep. Tom Price (R-Ga.), and Sen. Lindsey Graham (R-S.C.) have made repeated attempts to defund and dismantle the agency, and this is just the latest opportunity to do the work of their corporate donors by tearing down protections for workers.”

    The Boeing case is yet another effort of rightwing policymakers to trample obstacles in the way of corporations from expanding their power at the expense of consumers and workers. As Rolling Stone’s Matt Taibbi notes in a recent article, “The People vs. Goldman Sachs,” a comprehensive report from Sen. Carl Levin and a subcommittee lays out the brutal facts: Goldman Sachs stole “more money than most people can rationally conceive of, from their own customers,” and then went before the Senate “took an oath before Congress, and lied about it.”

    In a recent editorial, The New York Times said the NLRB’s action against Boeing “is a welcome effort to defend workers’ rights to collective bargaining.”

    “At the very least,” the editorial concluded, “this case will shed light on the business strategies employed by a powerful company to resist unionization.”

  • April 20, 2011
    Guest Post

    By Douglas A. Kysar, Joseph M. Field ‘55 Professor of Law at Yale Law School and the author of Regulating from Nowhere: Environmental Law and the Search for Objectivity. ACS recently hosted a panel discussion centered on Kysar’s book. Watch video of the event here, and a short video interview with Kysar following the event here.

    In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

    Yesterday morning’s argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.”  (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a great way to deal with the problem, as the benefits of emissions permits have been oversold and the likelihood of a carbon tax passing Congress is nil).  For her part, Justice Sotomayor was nowhere to be found since she had recused herself from the case, even though she would have been within ethical guidelines to stay involved.

    With friends like these, environmentalists might be forgiven for asking themselves, who needs Scalia?  Well, actually, even the reliably conservative Justice Scalia surprised observers this morning with just how conservative he could be. Throughout the oral argument, Scalia brazenly asked the electric utilities’ lawyer for suggestions on how to use this case to prevent climate change tort suits in both federal and state courts. (Answer: There is no appropriate way because the question of state common law climate change claims has not been raised in the present suit).  

    So is there any good news for environmentalists and other progressives from yesterday's argument? 

  • February 1, 2011
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law. 
    Judge Vinson's opinion striking down the Affordable Care Act was remarkable for the ease with which it jettisoned two centuries of settled law. Ever since McCulloch v. Maryland, the Supreme Court has held that the Necessary and Proper Clause gives Congress the authority to reach matters otherwise beyond the strict confines of Congress's enumerated powers. Yet Judge Vinson - like Judge Hudson in the Virginia decision several weeks ago - effectively reads the Necessary and Proper Clause out of the Constitution.

    Vinson's logic goes like this. The minimum insurance requirement, he says, falls outside of Congress's power to regulate "commerce . . . among the several states" because it regulates inactivity, rather than activity. Of course, nowhere in the text of the Constitution is Congress's authority limited to regulating activity, but ignore that for the moment. Because Congress doesn't have power under the Commerce Clause to require taxpayers to purchase insurance, the Necessary and Proper Clause can't be used to justify the law either.

    The judge's decision can't deny that the insurance requirement is necessary. Indeed, it is so central to this comprehensive health insurance regulation that he held the whole law had to be struck down. The problem, he says, is that the minimum coverage provision isn't "proper" because it falls outside of Congress's powers under the Commerce Clause.

    If Vinson's tautology were applied to past Necessary and Proper Clause cases, they would come out the other way. In McCulloch, the law chartering a federal bank would be invalidated because Congress doesn't have any explicit power to charter a bank. In Gonzales v. Raich the Court upheld a federal ban on homegrown marijuana because, Justice Scalia's influential concurring opinion explained, it was an essential piece of a comprehensive regulation of a market - even though the growing of marijuana for personal use was beyond the reach of the Commerce Clause. Vinson's reasoning would mandate the opposite result. And just last term, the Supreme Court held in United States v. Comstock that the Necessary and Proper Clause empowered Congress to detain certain sex offenders even though, again, doing so was outside of any other enumerated powers.

    The basic purpose of the Necessary and Proper Clause is to give Congress the choice of means it can use to make a regulation of, say, interstate commerce effective. That is exactly what the minimum coverage requirement does. There's no doubt that the Affordable Care Act is a broad, comprehensive regulation of the health insurance market. Requiring individuals to finance their own medical expenses is closely and directly tied to the viability of that broader regulation. That's why it is both necessary and proper, however those terms are defined.

  • January 31, 2011
    Guest Post

    By Simon Lazarus, Public Policy Counsel for the National Senior Citizens Law Center, and author of the ACS Issue Brief, "Mandatory Health Insurance: Is it Constitutional?"
    Today's decision in Florida federal district court striking down the Affordable Care Act in its entirety would effectively shred the Constitution as it has been interpreted, applied, and endorsed across a broad ideological spectrum for the last three-quarters of a century - since the New Deal - and, actually, dating back to Chief Justice John Marshall's expansive interpretations of the constitutional provisions directly at issue here. This decision, along with Judge Henry E. Hudson's recent decision to strike essential parts of the ACA, exhume the long-dead and discredited doctrines that the pre-New Deal Supreme Court deployed to overturn laws that prohibited child labor, prescribed minimum wage levels and maximum hours.

    Among those who have joined in rejecting the century-old, long-defunct decisions on which Judge Roger Vinson's decision rests, are Justices Scalia, Kennedy, and Chief Justice Roberts. They will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.


  • January 20, 2011

    By Benjamin Ross and Steven Amter. Ross is president and Amter is senior environmental scientist at Disposal Safety Incorporated, a consulting firm in Washington, D.C.

    Is regulatory capture inevitable? Our new history of environmental regulation, The Polluters, says no. Frequent, yes, but by no means unavoidable.

    Conflict over pollution control follows a long-standing pattern that goes back to the 1920s and before. No force of nature makes regulators do the bidding of those they are supposed to oversee. Nor is it the effect of some vague intellectual influence. Direct political and economic pressure, it turns out again and again, has been the cause of capture.

    Industrial polluters were challenged early on by conservation groups and affected economic interests. Competition in the political sphere was mirrored by conflicts among government agencies. From the beginning, many regulators tried to enforce environmental controls. Almost invariably before the regulatory revolution of the 1970s, and not infrequently since, they were the victims of political decisions that deprived them of needed legal authority or transferred their functions to more pliant organizations.

    The New York Harbor Act of 1888 and the Rivers and Harbors Act of 1899 put the first federal controls over water pollution in the hands of the Army Corps of Engineers. When oil slicks plagued coastal waters after World War I, the Corps called for federal regulation of mines and factories as well as ships at sea. Lobbying by the American Petroleum Institute, backed by Secretary of Commerce Herbert Hoover, convinced Congress that only marine vessels should be regulated under the Oil Pollution Act of 1924.

    By the 1930s, the Food and Drug Administration was pushing the limits of its authority over pesticides. Its seizures of apples contaminated with lead arsenate ran into trouble in court - under the Pure Food and Drug Act of 1906, food sellers charged with violating concentration limits could question the science behind the limits as a defense - so the FDA started a study. But the experiment was halted with the slaughter of five thousand rats when the House Appropriations Committee cut off funding. Felix Wormser, a lead industry lobbyist who is known to history for his efforts to stop publication of warnings against the use of lead paint on cribs and toys, suggested transferring the money to the Industrial Hygiene Division of the Public Health Service. This organization, whose head had earlier vouched for the safety of leaded gasoline and suppressed reports of Black Lung disease, recommended a doubling of the allowable arsenic in food and a tripling of the lead limit.