True Freedom Means Black Power — And Black Judges

As a proud Mississippian and a Black man, my connection to the state runs deep. However, I have not always felt that same love reciprocated. Growing up in a town near Money, Mississippi, where the tragic events surrounding Emmett Till unfolded, I witnessed the lingering presence of racism, stifling and thick. In the same state where Stokely Carmichael espoused "Black Power," I felt no such thing.  

Despite encouragement from my family to pursue my dreams, the world around me often painted a different picture. It was easy to see the remnants of slavery in a state where physical labor is still primarily reserved for Black individuals and positions of power are predominantly held by white individuals. Still, I held onto the hope that things would change as I grew older. Academia, I believed, could be the promised land where equality and merit would prevail. 

Within the walls of the University of Mississippi, the administration and others on campus challenged my optimism. During my first year, the Ku Klux Klan rioted on campus to protest President Obama's reelection. It was a stark reminder that hatred based on an immutable characteristic could manifest anywhere, including within academia. Such experiences weighed heavily on me. 

During my time at Ole Miss Law, the absence of Black speakers and professionals among the invited judges, lawyers, and speakers was glaring. It felt like a deliberate exclusion of Black voices, leaving me questioning my place within the legal field. However, in my final year, I had the privilege of meeting a Black federal judge, Carlton Reeves. The encounter was an exhilarating experience, one that reaffirmed my belief in the power of representation. For the first time, I met a Black individual who possessed the authority to effect positive change in Mississippi, someone who understood the complexities of being Black and American. 

While meeting Judge Reeves was a great and empowering moment, it also highlighted the scarcity of such individuals in positions of power. As of June 2023, Mississippi only has three Black federal district judges out of fifteen, despite being nearly 40% Black. Even President Biden's efforts to nominate Scott Colom, a highly qualified Black attorney, for the Northern District have faced obstacles due to opposition from a white Mississippi senator. 

The situation at the state level is even more disheartening, with only one Black member in Mississippi's state executive branch and a solitary Black justice on the Mississippi Supreme Court. This disproportionate representation perpetuates a white chokehold on power, symbolized by recent legislation attempting to establish a racially segregated "special judicial district" in downtown Jackson. 

Growing up as a Black American in Mississippi has been challenging, with racism often masquerading as heritage and systemic barriers hindering progress. The absence of proportional representation in positions of power is discouraging and perpetuates a sense of invisibility. While judges like Carlton Reeves offer hope and progress, we still have a long way to go. 

I believe true freedom for Black Mississippians can only be realized when we see leaders who reflect our diversity in all levels of power, including federal and state courts. My sincere hope is that we can work together to overcome the remnants of slavery and systemic racism, ensuring that the promise of a truly inclusive Mississippi becomes a reality. And the words "Black Power" only invoke a world of black representation, not fear of superiority. 

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Robert Williams is the Associate Director of Chapters at ACS.

A Win with the Status Quo for Social Programs

On June 8, in a low-profile yet crucial case, the U.S. Supreme Court affirmed that Medicaid beneficiaries can seek relief in federal court to enforce federal laws against states. The 7-2 decision in Health & Hospital Corporation of Marion County v. Talevski held that the Federal Nursing Home Reform Act of 1987 (FNHRA), which protects nursing home residents through amendments to Medicare and Medicaid, can be enforced by private actions under 42 U.S.C. § 1983, the federal civil rights statute that allows a person to sue individuals “acting under color of law” who violate their civil rights. Talevski did not transform current law, but it had potential to weaken federal social programs broadly, so the status quo counts as a win for the spending power as well as the Medicaid program, providers, and beneficiaries.

Section 1983 claims in spending programs have been scrutinized under Gonzaga University v. Doe, a 2002 Supreme Court decision that made it more difficult for individuals harmed by state noncompliance with federal law to enforce statutory rights but that also kept Section 1983 claims on the table. The Rehnquist Court would not revisit Gonzaga, but the early Roberts Court showed openness to revisiting precedents, and during the 2006 Term the Court granted an Arkansas petition that would have reexamined Section 1983 actions in Medicaid. The case was voluntarily mooted before oral arguments, but ever since, petitions for certiorari in similar Medicaid enforcement cases have flowed to the Court. So, when the Talevski petition was granted based on a Seventh Circuit decision that was well within the Gonzaga framework, it worried experts who understood this history.

By way of quick background: Congress exercises its spending power to “provide for the general welfare” when it enacts laws that form the nation’s safety net, and Congress usually invites states to partner in federal policies. These conditional spending programs, such as the Children’s Health Insurance Program (CHIP), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), and Title X family planning, offer money to implement federal law, and in return states agree to follow federal rules.

Medicaid is one of these conditional spending programs and a statutory entitlement for both states and beneficiaries. It provides public health insurance to more than 86 million people, or nearly a quarter of the U.S. population. In addition to children, pregnant people, and people with disabilities, Medicaid also is the primary payer for long-term care, covering almost two-thirds of those receiving institutional long-term services and supports. The nearly sixty-year collaboration between the Department of Health and Human Services (HHS) and states makes it so Medicaid is a partnership but also a source of conflict. States sometimes do not deliver Medicaid’s promised benefits and have used federal Medicaid money for other purposes, so federal oversight is necessary.

The Health and Hospital Corporation (HHC) petition primed the Court to strike at the heart of conditional spending programs. If HHC and its state supporters had their way, beneficiaries denied Medicaid’s legally promised benefits would have had no recourse in federal court. Specifically, HHC presented two questions. First, whether private parties can sue states under Section 1983 to enforce conditional spending programs at all. Since 1980, the Court has blessed enforcing federal social programs’ rules against noncompliant states through Section 1983, which Congress enacted in 1871 as part of the Ku Klux Klan Act to provide a way to enforce civil rights when states did not protect their own residents. Federal courts have held both health care providers and patients can enforce Medicaid’s statutory entitlements under Section 1983. Congress rejected proposals to eliminate this private right of action over time. One irony of HHC’s fight against Section 1983 actions is that courts can issue fine-tuned decisions that address directly states’ noncompliant actions, whereas administrative action (withholding funding) is less precise.

Second, HHC argued the FNHRA is not enforceable under Section 1983, even though Medicaid requires states to cover nursing facility care, which means facilities receiving Medicaid funds must meet FNHRA standards. Gorgi Talevski had dementia and lived in a state-run nursing facility in Indiana. His family alleged the HHC nursing facility failed to provide adequate care, overmedicated him, and transferred him without permission, but administrative remedies provided them no relief. Their allegations raised the question of enforcement for the FNHRA Residents’ Bill of Rights against state entities like HHC, which the Medicaid Act does not address directly.

HHC seized a new opportunity, given the Court’s current willingness to overturn settled precedent and the history of the Roberts Court granting Section 1983 petitions in Medicaid. Yet, during oral arguments the Justices largely seemed skeptical of HHC’s sweeping requests, which would have required overruling many longstanding precedents.

This was arguably Justice Ketanji Brown Jackson’s first majority opinion with high policy stakes. Her questions during oral argument were deeply engaged with the statutory civil rights at issue, noting the law’s history and intent to protect freed slaves during the Reconstruction Era. The majority opinion noted that Congress enacted Section 1983 with plain language allowing people to sue state officials for “the deprivation of any rights . . . secured by the Constitution and laws” and making state officials “liable . . . in an action at law, suit in equity, or other proper proceeding for redress . . . .” Justice Jackson expressed doubt that a sudden, sweeping limitation on the use of this clearly-worded civil rights law would somehow correct prior misinterpretations.

The Court thus firmly rejected HHC’s argument that no federal spending program could be subject to Section 1983 actions and reiterated that state noncompliance with Medicaid could be enforced by private parties where the provision in question creates unambiguous rights, consistent with Gonzaga. Though some parts of the Medicaid Act do not meet the Gonzaga test, the Court decided that the FNHRA does because it describes patient protections and repeatedly mentions “residents’ rights.” This is the same kind of language that has given rise to private enforcement actions for other Medicaid provisions.

Justice Gorsuch and Justice Barrett (joined by Chief Justice Roberts) wrote separate concurrences, each expressing openness to more petitions like this. The concurring opinions found the FNHRA to create enforceable rights, but they were not willing to close the door to the larger theory HHC resurfaced, that Medicaid beneficiaries cannot enforce federal law because they are “third-party beneficiaries” to a “contract” between HHS and states. Under this line of thinking, only HHS could enforce Medicaid rules, never health care providers or patients.

Justice Thomas’s lengthy dissent expressed doubt that Congress has any conditional spending power rooted in the General Welfare Clause. To be clear, the Court has held the power to spend is a standalone enumerated power since 1936, and the Rehnquist Court found conditional spending to be unremarkable when fashioning the four-part analytical test for evaluating it in South Dakota v. Dole. Justice Thomas’s radical approach would effectively force Congress to start over on most social programs. Notably, this dissent was joined by no other justices, even though Justice Alito has appeared receptive to such arguments in the past. Justice Alito’s dissent perceived the FNHRA to have adequate administrative remedies that would preclude Section 1983 actions.

The concurrences and dissents have the effect of inviting more litigation over Section 1983 actions in federal spending programs. As I have written elsewhere, the New Roberts Court has abundantly demonstrated, often through health law and policy, an openness to overturning long-established precedent. And, many of these decisions indicate a renewed federalism revolution. To name just a few examples: the Court limited OSHA’s power to protect worker safety in NFIB v. Department of Labor; overturned Roe v. Wade in Dobbs v. Jackson Women’s Health in the name of returning abortion regulation “to the people and their elected representatives”; and limited federal agencies’ authority upon anointing the novel major questions doctrine in West Virginia v. EPA, among other key decisions.

With this chaotic legal landscape in mind, Talevski is notable for simply maintaining the status quo. Perhaps counterintuitively, keeping private rights of action available to Medicaid providers and patients, whose statutory rights are violated by states with some regularity, can even be seen as federalism-enhancing, because federal courts can craft narrower remedies. HHS has few options: withhold funding, partially or entirely, or work with states to come into compliance. Withholding funding is a blunt tool that could harm providers and patients, as states generally do not hold extra Medicaid money in reserve and would find ways to cut costs. Further, HHS does not have capacity to detect and investigate every single state action that violates the Medicaid Act. Former administrators of HHS repeatedly have written in amicus briefs that they rely on Section 1983 actions to know when states are noncompliant. These actions protect vulnerable populations, such as Gorgi Talevski, and Medicaid enrollees.

The ability to seek redress in court for enforcement of statutory civil rights is critical for access to justice, and holding in favor of HHC’s arguments would have controverted the purpose of Section 1983 as one of the nation’s oldest civil rights tools. Medicaid covers a disproportionate number of Black and other people of color, and so limiting Section 1983 actions would have had a disproportionate impact on these low-income populations and the providers who care for them. Further, the “great unwinding” of Medicaid eligibility that is occurring with the end of the COVID-19 public health emergency creates a new moment of precarity. Many who are or will be disenrolled are legally eligible but face administrative hurdles and may need Section 1983 actions in the near future. In addition, with Arkansas’s governor and House Republicans proposing work requirements all over again, other forms of administrative disenrollment are back on the table.

A ruling in favor of HHC would have meant that millions who rely on federal programs would not be able to stop a state from violating their statutory rights. HHC tapped into a theory that has resurfaced for decades, as recently as 2015, but has never taken hold. If HHC had won, it would have undermined federal social programs, very likely in the name of federalism. Though private rights of action in Medicaid have been maintained, stay tuned – more petitions are sure to come.

Nicole Huberfeld is the Edward R. Utley Professor of Health Law at Boston University's School of Public Health and Professor of Law at the Boston University School of Law. She also is co-director of the BU Law Program in Reproductive Justice. 

The Lost Constitutional Stakes of Labor Unions

Excerpted with permission from Diana S. Reddy, After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions, 132 YALE L.J. 1391 (2023)

It is a consequential moment for American labor unions. Over the past decade, public support for labor unions has skyrocketed. Yet even in this moment of renewed public interest, the American conversation about unions remains constrained by the legacy of past legal decisions,...[by what I call] the “the law of apolitical economy.”

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Framing Labor Law for Lochner-Era Courts

The American labor movement of the mid-late 1800s and early 1900s advanced inherently normative claims about the value of unionism. Unions served fundamental American ideals. Early labor leaders spoke of “labor republicanism,” the idea that a democracy required autonomy and self-determination in the economic sphere too. Progressives in the early twentieth century championed an ideal of “industrial democracy,” that workers should have a voice in an otherwise authoritarian workplace. The 1914 Clayton Antitrust Act—labor’s first federal legislative win—insisted that market logic should not trump human rights. It proclaimed: “[T]he labor of a human being is not a commodity or article of commerce.” According to Samuel Gompers, President of the American Federation of Labor, that proclamation was “epochal.” It would, he said, “mark[] the end of the old period where workers were under the shadow of slavery and the beginning of a new period [in which neither] workers nor their labor power are to be regarded as things—the property of another.” Consistent with this view, labor unionists also saw themselves as effectuating constitutional values under the First, Thirteenth, and Fourteenth Amendments to the U.S. Constitution.

But New Dealers hoping to revolutionize American political economy in 1935 were neither labor leaders nor workers. They were politicians, lawyers, and economists with their own agendas, and who knew they would face challenges in effectuating them. Senator Wagner was especially concerned about how the Supreme Court would react to his statute. This was no remote fear. The NLRA was actively under consideration by Congress on May 27, 1935, when the Supreme Court issued three unanimous decisions ruling against the Roosevelt Administration. The last of those, Schechter Poultry Corp. v. United States, invalidated the National Industrial Recovery Act, a law with clear analogues to the NLRA. Wagner acted in the middle of a political revolution that had not yet become a judicial or constitutional revolution. Making legal arguments to courts, he decided, would demand code-switching….

The politicians, lawyers, and economists working on the statute...insisted that the statute be framed as a regulation of commerce….The justification of labor law under the Commerce Clause relied on two main arguments. First, consistent with Secretary Perkins’s vision, it was an “essential economic factor[] for recovery,” rendered logical by the dominant economic views of the time. By increasing worker bargaining power, labor law would increase consumers’ income, stimulating aggregate demand and economic growth. Second, it would promote industrial peace. At a time when workers across the nation were striking, some in increasingly radical ways, deterring strikes with a rationalized collective-bargaining process was also good economic policy.

The preamble to the NLRA reflects the constitutional strategy of its drafters, and it arguably suffers as a result. In the late 1800s and early 1900s, labor’s normative arguments had been a clarion call. In contrast, the preamble to the NLRA reads as somewhat muddled. Its most powerful normative stances are asserted in subordinate clauses. On the way to its macroeconomic concerns, the preamble notes “the inequality of bargaining power” between employers and employees who lack “full freedom of association [and] actual liberty of contract.” But its intervention is premised on the purported economic effect of these infringements, not their inherent injustice. Workers should have equality, freedom, and liberty, because when they do not, it “substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions.”

To be sure, Senator Wagner and his aide Leon Keyserling, the two who together drafted most of the bill, were invested in the law’s broader normative aspirations. They believed there was a moral case for redistribution and were particularly interested in the idea of “worker freedom.” They also believed in the economic arguments. In their minds, the two were complementary. As Keyserling would later reflect: “[W]e were interested in the struggle to be free as well as in the bread and butter issue. I really don’t know whether we explicitly weighed one higher than the other. They were complementary and each fed the other.” It was only in the years that followed that the inherent link between these two justifications would fracture.

The Law of Apolitical Economy

In 1937, the Supreme Court upheld the constitutionality of the NLRA in a decision that reflects all the possibilities and uncertainties of that moment. In NLRB v. Jones & Laughlin Steel Corp., the Court ruled that the NLRA was a reasonable exercise of Congress’s Commerce Clause power. Its reasoning mirrored the statutory preamble—commerce and rights, all at the same time. Consistent with the industrial-peace argument advanced by strategic lawyers, the Court found that strikes had a major impact on commerce, and so Congress could act to deter them. At the same time, the Court opined—for the first and only time in the history of Supreme Court jurisprudence on labor unions—that labor collective action was a “fundamental right.” In 1937, and perhaps only in 1937, unions’ roles in shaping commerce and in advancing rights were allowed to overlap.

One year later, the Court would decide United States v. Carolene Products Co. In it, the Court set forth guiding principles for judicial review in a post-Lochner era. The federal judiciary would reserve searching constitutional scrutiny for those cases in which majoritarian democratic processes might prove insufficient, when legislation affected “discrete and insular minorities” or intruded upon enumerated fundamental rights. In contrast, purely “commercial” regulation would henceforth be presumed not to have constitutional stakes. With this line-drawing, the Court suggested that regulation of the economy should be guided by a particular logic, crafted on a “rational basis” by legislators acting “within their knowledge and experience.” The goal of the Carolene Products framework was to protect statutes like the NLRA from invalidation by hostile courts, through categorically restricting the scope of judicial review over economic legislation. But to do so also meant deconstitutionalizing the stakes of labor unions, walking away from the emergent vision of fundamental union rights set forth in Jones & Laughlin. And as applied, it would mean even more than that, effectively cabining the range of legible normative arguments for labor unions within legal discourse. Labor law would be judged based on its rationality, its consistency with existing knowledge and expertise.

A few years later, the Supreme Court was called upon to adjudicate unions’ actual constitutional rights under the First Amendment, in a case involving peaceful labor picketing. The resulting decision in Thornhill v. Alabama has been heralded as a high point in Constitutional political economy, and it was. Yet the particularities of its reasoning also highlight a real-time shift toward applying the law of apolitical economy to unions, toward purposefully eliding their full normative stakes.

In Thornhill, the Court struck down an Alabama statute that prohibited labor picketing. It did so by equating labor’s interests with business interests, and treating them both as matters of public concern deserving of First Amendment solace. “It is recognized now,” the Court said, that “satisfactory hours and wages and working conditions in industry and a bargaining position which makes these possible have an importance which is not less than the interests of those in the business or industry directly concerned.” This phrasing—“not less than”—was carefully considered. An earlier draft of the opinion said that labor’s importance “transcends” business interests. Three years prior, when labor advocacy was a “fundamental right” all on its own, that might have been the case. But with the Court’s commitment to a deconstitutionalized economy solidified, their language needed to be precise. Good jobs and the freedom and power to fight for them were economic issues; they did not transcend them. In the Court’s pointed “now,” this categorization still worked in labor’s favor. When workers’ interests were seen as integral to the national economy, labor advocacy was a matter of public concern, worthy of First Amendment protection. But it would not always be.

Legal scholar Martha T. McCluskey has described Carolene Products as a constitutional theory that “treats economic justice as discretionary, separate from and subordinate to fundamental constitutional protections for political and civil justice.” And it does so in part through line-drawing. According to the law of apolitical economy, economic issues and sociopolitical ones are not inherently bound together; they are separate categories. The NLRA intimated that unions advanced constitutional values, “actual liberty of contract” and “full freedom of association” within the economic sphere. But Thornhill used the NLRA’s economic justifications to firmly classify labor law on one side of the line. Having drawn that line, the law of apolitical economy then cabined the kinds of justification available. Appropriate regulation of the economy is rational, not moral.

Perhaps unsurprisingly, the Court’s protection of labor speech for its industrial importance did not last long. Over time, the law of apolitical economy would soundly carve out unions’ statutorily defined role from the material and symbolic benefits of constitutional protection under the First Amendment and an evolving constitutional conception of values-based advocacy. In time, I suggest it would also play a role in denying labor’s legibility as a rights-based movement at a time when rights had become the leading normative discourse within American culture and law.

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Under the law of apolitical economy, unions’ core statutory functions—allowing workers to come together to improve their working conditions, full freedom of association and actual liberty of contract—were shorn of their normative importance. They were legally framed as transactional and self-interested. The goal was to give unions more power, to insulate them from potentially hostile courts. But the problem is that if you say something enough times, people start to believe it. Unions and their supporters today still struggle to overcome that construction, to reclaim good jobs and the power to achieve them as a normative good, in and of itself.

Diana S. Reddy will be an Assistant Professor at the University of California, Berkeley, School of Law, starting July 2023. She recently completed her PhD in the University of California, Berkeley’s Jurisprudence and Social Policy Program.

Labor Renewal In the Absence of Labor Law Reform

Photo: Jay Mallin for the AFL-CIO

This piece is the third in a month-long blog series that celebrates Labor History Month and examines how the labor movement’s past struggles and victories can inform the present fight for workers’ rights.

For years, labor law professors and union lawyers have argued about what the labor movement must do to grow. Because every problem looks like a nail if you have a hammer, those arguments have largely focused on the need for labor law reform.

The current moment calls into question the assumption underlying those arguments. Today’s labor movement has momentum, optimism, and – hopefully soon – will experience significant growth.  Yet, labor law reform remains a dream deferred.

What gives?

Workers are on the move even though the law remains broken. Figuring out why may offer insight into the labor movement’s path forward.

One thing that is clear is that many workers really, really want to form a union. And these workers appear to be less afraid to take risks to do so.  That may be because unemployment is so low that workers know they have other options if, as so often happens, their employer fires them for organizing.

There is almost certainly something generational going on as well. It’s been a long time since so many young people have been this excited about forming unions, as Teen Vogue’s labor beat writer – I’ll repeat that, Teen Vogue’s labor beat writer – has explained. And, many young people – including increasing numbers of women and workers of color – are choosing to pursue union apprenticeships in the building trades as an economically-secure and personally-fulfilling career path.

Some employers, on the other hand, may feel stuck between a rock and a hard place, and that feeling may make worker organizing a smidgen easier. It’s a bit harder to fire an employee for being a union activist when your business is already short-staffed and you know you can’t realistically expect to hire a replacement any time soon. Or to run a vigorous anti-union campaign when it’s obvious your employees are already feeling squeezed and that subjecting them to repeated captive audience meetings and one-on-one anti-union pressure sessions with their supervisors will only make morale worse.

Then there’s the influence of the federal government. There are two distinct aspects of what the current administration is doing in the economy that are making a real difference for workers who want to form a union, although there is even more the administration can do.

The first is the part that you hear a lot about. Joe Biden is the most pro-union President in our lifetime. Like Franklin D. Roosevelt, who famously declared, “If I went to work in a factory, the first thing I’d do is join a union,” Biden spoke out in favor of workers organizing at the Amazon warehouse in Bessemer, Alabama.  And he has appointed leaders of federal labor agencies – like former-Secretary of Labor Marty Walsh, current Acting Secretary Julie Su, and NLRB General Counsel Jennifer Abruzzo – who appear to be doing everything in their power to even the playing field for workers and unions.

That’s all true. But a dirty little secret of the deep state is that there is only so much that these labor agencies can do through the regulatory process to move the needle for workers and their unions absent statutory change, even if the leaders of these labor agencies really, really want to help through vigorous enforcement of existing laws.

The part you don’t hear much about – but that matters a great deal – is what other agencies of the federal government are doing through their implementation of laws like the bipartisan Infrastructure Investment and Jobs Act (IIJA), the CHIPS and Science Act (CHIPS), and the Inflation Reduction Act (IRA). With names like these, you’d certainly be excused for thinking these statutes don’t have much to do with workers forming unions.  But the truth is, taken together, the IIJA, CHIPS, and the IRA provide significant opportunities for large-scale union growth.

The reason is two-fold.

First, and most importantly, these laws will inject more than $2.3 trillion into the economy and should create several million new jobs in the United States over a relatively short period of time, with a significant percentage of the new jobs in construction and manufacturing.  Indeed, some are calling this the United States’ first industrial policy in a generation. The laws contemplate a transformation of the U.S. economy, standing up entirely new industries in significant, future growth sectors such as semiconductor production and solar panel manufacturing.

All of this is happening at a time of record low unemployment and, in addition, many of these jobs require occupation-specific training. So, employers have to compete for the available skilled and trained workers they need to undertake these often massive projects and, as we have described, that tends to make workers a little more willing to take the risks associated with forming a union.

Secondly, the federal government has recognized – correctly, I might add – that if it is going to invest significant taxpayer money in creating entirely new industrial sectors in the United States, it ought to do so in a manner that results in an economy of the sort that people want to work and live in, e.g., safe jobs with middle-class wages and benefits, a concerted effort to address the historic racial and gender inequalities that plague our labor markets, training opportunities so that local residents have a fair shot at obtaining work near where they live, and special consideration for communities historically burdened by pollution.

To see why this matters so much, one need look no further than auto manufacturer Hyundai for an example of what will happen if federal investment is made without a proper accounting for community impacts.

Late last year, Hyundai Motor Company and its sister Kia Corporation entered into settlement negotiations with the U.S. Department of Labor over allegations that company suppliers, including Hyundai subsidiaries, were employing children as young as twelve in manufacturing jobs in violation of federal and state law. Yet, at the same time, Hyundai is in the process of building a huge new  $5.5 billion electric vehicle and battery “Metaplant” in Georgia, presumably to take advantage of generous IRA tax credits that are available only for those EV vehicles that are assembled in North America.

It is obviously illogical for one arm of government to hand out generous financial subsidies to an employer while a sister federal agency investigates the company for serious labor violations. Not only does such an approach subsidize the company’s lawbreaking, it also undercuts the many responsible employers who abide by our nation’s labor laws and compete with Hyundai for federal support. The Biden Administration’s commitment to ensuring that the jobs created by the IIJA, CHIPS, and IRA are good jobs thus makes good practical sense.

It is for this reason that the AFL-CIO has repeatedly urged the Biden Administration and the agencies charged with administering these statutes to take additional steps when issuing rules and guidance implementing the IIJA, CHIPS, and IRA to ensure that law-breaking employers do not receive federal funds and to put clear incentives into place to encourage employers to take the high road of respecting their employees’ right to form a union without interference.

Workers’ recent victory in forming a union with the United Steelworkers at the Blue Bird bus manufacturing plant in central Georgia illustrates why policies of this sort are so important. Workers at the Blue Bird plant assemble electric school buses.  Construction of those buses are subsidized both directly, through $40 million in rebates issued to the company by the Environmental Protection Agency, and indirectly, through $5 billion in the IIJA that incentivizes school districts nationwide to replace their existing diesel buses with low- or no-emission vehicles like the ones Blue Bird’s workers produce.

When national and state elected leaders asked Blue Bird to respect its workers’ federally-protected right to form a union without company interference, that effort made a difference. On May 12, workers voted 697 to 435 to form their union with the Steelworkers. And the company, unlike Amazon and Starbucks, who have tied-up worker organizing victories in legal challenges for months or even years, did not challenge the workers’ victory. That’s how federal investment can help build an economy that works for workers, business, and the community.

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Of course, with a casebook as my hammer, I can’t help but emphasize that labor law really does still matter, even if historic victories like Blue Bird demonstrate that it is not the only thing that matters.

Indeed, labor law may matter most at the state level, where a right-wing governor and legislature can eliminate public sector workers’ longstanding collective bargaining rights in one fell swoop. For example, Florida recently enacted anti-union SB 256. Among many other unabashedly union-busting provisions, that Ayn Rand-inspired statute requires unions – private voluntary organizations – to include specific language in their membership forms stating that “Florida is a right-to-work state” and that “union membership and payment of union dues and assessments are voluntary.” That’s like the state requiring the AARP to include unnecessary language in its membership application saying that “even though you are 50, AARP membership remains voluntary and is not required by Florida law.” Talk about woke indoctrination by the government!

On the federal level, the need for labor law reform of course remains painfully obvious. Starbucks, for example, appears to have simply refused to bargain with its employees at the 144 stores around the nation where workers have organized and there is little the NLRB can do to effectively counter the company’s intransigence. Starbucks presumably calculates that, since there is no economic penalty for an employer’s refusal to bargain with a certified union, it makes economic sense to drag its feet. If the Protecting the Right to Organize (PRO) Act were enacted, the NLRB would have many more tools available to convince Starbucks to quickly comply with its obligation to bargain with its workers.

But the takeaway is that workers aren’t waiting for labor law reform – and shouldn’t wait – to forge ahead and form unions. While workers certainly should care about what Congress and the Supreme Court does – not the least because of what the Court might soon say about the right to strike in its forthcoming decision in Glacier Northwest v. International Brotherhood of Teamsters – they will not let a conservative House of Representatives or Supreme Court stop them from organizing at their own workplaces. That organizing, and the rebuilding of worker power and voice in our economy and politics that will follow, is the necessary precondition to enacting the PRO Act and achieving a Supreme Court majority that reflects the interests of working people.

Matt Ginsburg is General Counsel of the AFL-CIO.

 

Portrait of a Queen: Hawaiian History and the Law

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities.

Last week, I walked into a special exhibit in the National Portrait Gallery in Washington, D.C., and was confronted with a large painting of Hawai‘i’s last sovereign, Queen Lili‘uokalani. In the portrait, the Queen peers out at visitors as they seek to beat the Potomac heat, as if to say, “listen to my story.” The portrait, which, for the first time, journeyed halfway across the globe from its home in Hawai‘i, was a poignant reminder of the same voyage that the Queen took more than a century ago to tell the history of her people and her stolen nation. 

American Overthrow

For centuries, Hawai‘i’s indigenous people lived in a highly sophisticated and self-sustaining community. As with many other indigenous peoples, western contact brought about the near demise of Native Hawaiians.  Despite dwindling numbers, the Native Hawaiians persevered and created an independent and internationally recognized Kingdom of Hawai‘i.   

Yet, in 1893, and capitalizing on American expansionism across the Pacific Ocean, the marines of the U.S.S. Boston unlawfully landed on the shores of the Kingdom. The insurrectionists forced the then-Queen, Lili‘uokalani, to make a decision to either suppress the American-supported coup and face the wrath of the American military, or cede her authority and hope that the rule of law in Washington, D.C. would prevail. To avoid bloodshed, the Queen chose the peaceful and diplomatic path. The bloodless coup, however, resulted in the illegal overthrow of the Kingdom and calls for immediate annexation.    

President Grover Cleveland condemned his countrymen’s conduct in the islands as an “act of war.” Kingdom citizens refused to sit idly and let the United States seize their land and their sovereignty. Community leaders gathered petitions expressing strong opposition to annexation. After being delivered to Congress, in 1897, these petitions helped make the case against Senate ratification of a proposed annexation treaty. Nevertheless, American imperialism prevailed. In 1898, and although the United States Senate never ratified a treaty of annexation as required under the Constitution, the McKinley Administration seized Hawai‘i through a joint resolution. 

Throughout this period and even following annexation, Queen Lili‘uokalani spent significant time in Washington, D.C. She met with politicians of all parties to plead the case for her people. Although halfway across the world, she never gave up and she told Hawai‘i’s story. 

The Project of Americanization

But, the injustices continued. Congress subsequently created the Territory of Hawaii in 1900 and, for decades, the project of Americanization inculcated the islands. Children (and their teachers) were punished for speaking the native language. Cultural practices were forced underground or, even worse, commodified to placate a growing tourism industry. Prime agricultural lands and precious natural resources were diverted from native farmers to support the sugar and pineapple industries. 

 The massive military presence in Hawai‘i made our lands and our people the target for anti-American sentiments just as America was poised to enter World War II. The Territory’s criminal justice system disproportionately and unfairly punished brown bodies. Native Hawaiians had the lowest rates of educational attainment, and the highest rates of incarceration and death. The project of Americanization was nearly complete. 

Promise of Reconciliation

Then, in 1978, something changed. Following a state constitutional convention, the multi-ethnic voters in Hawai‘i approved generation-shifting laws regarding traditional practices, the Hawaiian language, and reconciliation with Native Hawaiians. One of these constitutional amendments—the creation of the Office of Hawaiian Affairs—sought to alter the relationship between the State of Hawai‘i and the indigenous Hawaiian people. This new agency would be run by and for the betterment of the conditions of Native Hawaiians. It would serve as a vehicle for reparative action for the historical harms of colonization. 

President Bill Clinton and a bipartisan Congress amplified this message of hope for redress for historical harms when, in 1993, they apologized for the overthrow and committed to support reconciliation efforts between the United States and Native Hawaiians. While not perfect, the movement for reconciliation for the harms of the seizure of Hawaiian lands and sovereignty took significant steps forward. 

Reconciliation at a Crossroads

In 2000, the United States Supreme Court struck a blow to this reparatory momentum with its startling decision in Rice v. Cayetano, 528 U.S. 495 (2000). In that case, a white Hawai‘i resident challenged the Native Hawaiian-only voting limitations for the leaders of the Office of Hawaiian Affairs. The Court ignored the efforts of the state and federal governments to address the historical harms of colonization and the unique effort to provide a semblance of self-governance to Native Hawaiians through the Office of Hawaiian Affairs. The Court majority whitewashed the history of Hawai‘i and its native people. The Court then used that biased history to frame their legal conclusion and equate ancestry with race. In short, the Court denied Native Hawaiians their self-governance. 

 Since Rice, the path to justice for Native Hawaiians has been fraught with controversy. Any federal lawsuit dealing with Native Hawaiian issues has been forced to reconcile with the improperly premised and wrongly decided Rice decision. Even other indigenous communities across the Pacific, such as in Guam and the Northern Mariana Islands, have been shackled by Rice. 

 While the road to overturning Rice and correcting Hawai‘i’s history in the law seems to be perilous, to see Queen Lili‘uokalani revisit Washington, D.C.—even if just in a portrait—provides hope that Hawai‘i’s true history continues to be told. During this time as America celebrates Asian American, Native Hawaiian, and Pacific Islander Heritage Month, learn more about our unique histories and beautiful stories, and continue to share them. The fight for justice begins with sharing our stories.

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Troy J.H. Andrade is the Joanna Lau Sullivan Distinguished Professor and director of the Ulu Lehua Scholars Program at the University of Hawai‘i at Mānoa William S. Richardson School of Law.  His scholarship lies at the intersection of American jurisprudence and legal history, particularly in the context of the pursuit of Native Hawaiian political and social justice.  

The Korematsu Legacy

This piece is part of a blog series highlighting key legal issues facing Asian American and Pacific Islander communities. 

In 1942 Fred Korematsu of San Leandro, California, Minoru Yasui of Portland, Oregon, and Gordon Hirabayashi of Seattle, Washington, defied President Franklin Roosevelt’s Executive Order 9066, under which authority nearly 120,000 Japanese Americans were removed from the West Coast and incarcerated in desolate areas of the country. The three men maintained that it was unconstitutional to incarcerate Japanese Americans solely on the basis of their ancestry. But the U.S. Supreme Court allowed the government’s actions to stand and affirmed the men’s convictions in decisions issued in 1943 for Yasui and Hirabayashi and in 1944 for Korematsu.

The Korematsu decision was justifiably criticized for rubber-stamping the mass removal of an entire racial group on the basis of the government’s facile claim that it was a “military necessity.” In the dissenting words of Justice Robert Jackson, the Court’s decision “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Justice Jackson’s warning was indeed prophetic. After the 9/11 attacks in 2001, hundreds of Arabs, Muslims, and South Asians were detained and subjected to heightened government surveillance. A conservative author wrote a book calling the Japanese American incarceration an appropriate precedent for profiling Muslims.

The convictions of Korematsu, Yasui, and Hirabayashi remained on their records for more than 40 years. But in 1982, researcher Aiko Herzig-Yoshinaga and Professor Peter Irons discovered documents proving that the government lied to the Supreme Court when it claimed that “military necessity” justified rounding up Japanese Americans on the West Coast.

This stunning new evidence led volunteer attorneys in San Francisco, Portland, and Seattle to form legal teams to challenge the 40-year-old convictions. On January 19, 1983, the Korematsu team, which I had joined, filed a petition for writ of error coram nobis, a means of challenging a conviction when the petitioner is not in custody. On November 10, 1983, U.S. District Judge Marilyn Hall Patel of the Northern District of California granted Korematsu’s petition and vacated his conviction. In her written opinion, she concluded that the 1944 case “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” In 1986, the Ninth Circuit Court of Appeals vacated Hirabayashi’s convictions. Yasui’s conviction was vacated by the district court in Portland, but the court made no findings on his claims of government misconduct.  Sadly, his appeal became moot when he passed away in 1986.

The coram nobis cases became part of a successful movement for redress and reparations for Japanese Americans who were incarcerated during World War II. The Civil Liberties Act of 1988, signed into law by President Ronald Reagan, provided for a payment of $20,000 and a presidential apology to each Japanese American survivor of the incarceration. A coalition of civil rights, labor, and religious organizations supported the redress movement, and the Congressional Black Caucus played a critical role in the passage of the legislation.

In Trump v. Hawaii, a challenge to the government’s 2018 travel ban affecting primarily Muslim-majority countries, the Supreme Court purported to condemn Korematsu. Instead the Court upheld a discriminatory program based on a flimsy rationale of “national security,” despite compelling evidence of religious animus, just as it had done in the face of racial bias in Korematsu. Justice Jackson’s warning that Korematsu is a “loaded weapon” retains its force to this day.

The anti-Japanese fervor during World War II and anti-Muslim vitriol after 9/11 are uncomfortably familiar today. We are experiencing similar political and social stress, polarization, and extreme rhetoric, all intensified by social media. Asian and Pacific Islander Americans are still stigmatized as “perpetual foreigners,” subjected to stereotypes, and victimized by anti-Asian hate crimes. Many other Americans remain vulnerable to discrimination on the basis of race, religion, gender, and sexual orientation. Reliance on the Supreme Court to protect our civil liberties is futile. We must remain vigilant, speak out, build coalitions, and resist discrimination against all vulnerable groups and individuals. Many Japanese Americans, recognizing that they that they share a history of discrimination similar to, although not the same as, Black Americans, and that they would not have obtained redress without the support of Black Americans, are now joining the campaign for African America reparations. Don Tamaki, the only non-Black member of the California Reparations Task Force, was chosen for his experience as a leader of the Korematsu legal team, his knowledge of Japanese American redress, and his expertise in public education campaigns about the coram nobis cases and civil liberties.

The coram nobis cases leave us a positive legacy of vigilance, education, and coalition-building. Throughout their lives, Korematsu, Yasui, and Hirabayashi continued to speak out, not just about their own cases, but in support of the civil liberties of marginalized groups and individuals. Korematsu, departing from his quiet life as a draftsman in suburbia, became a civil rights activist. He wrote an essay criticizing the profiling of Arab Americans in the wake of 9/11 and signed several amicus briefs in support of American Muslims. He spoke often at universities and law schools across the country. In 1998 he received the Presidential Medal of Freedom. The Fred T. Korematsu Institute was founded to promote the lessons of his case, the Fred T. Korematsu Center for Law and Equality was established at the Seattle University School of Law, and a professorship in his name was endowed at the University of Hawai`i William S. Richardson School of Law.

As Korematsu often said, “Stand up for what is right.” We would do well to carry on that legacy.

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Leigh-Ann Miyasato was a member of the legal team representing Fred Korematsu in the coram nobis cases. She practices law and works in the nonprofit and entrepreneurial sectors in San Francisco, Washington, DC, and Honolulu.