To Defend Multiracial Democracy, Progressives Must Embrace Court Reform 

This piece was first published by Common Dreams. 

As the dust continues to settle on the Supreme Court’s 2023-2024 term, the conservative majority’s existential threat to our democracy (and, in particular, our multiracial democracy) could not be clearer. But progressives have also enabled this threat by refusing to embrace the democratic reforms necessary to bring the Court to heel.   

Beyond the widely panned decision granting Donald Trump unprecedented immunity from prosecution, the Court’s decisions have followed a clear trend of expanding power for the rich and connected (who will have new tools to challenge environmental and consumer protections), and diminishing it for people of color (who will have fewer tools to challenge racist gerrymanders), and the poor (who can now be incarcerated for sleeping outside even when no shelter is available). 

Even in supposed bright spots, such as Rahimi, in which the Court declined to overrule a federal law that bars anyone under a domestic violence restraining order from having a gun, its rulings have reified white supremacy. The Court did not refrain from imposing its “history and tradition” test for gun laws, which Sotomayor acknowledged privileges an era “predating the inclusion of women and people of color as full members of the polity.” The Court also conspicuously declined to address whether its vision of originalism includes the history of Reconstruction, which fundamentally transformed race relations and laid the foundation for multiracial democracy in the United States. 

In the face of the Court’s sustained attack on multiracial democracy, progressive responses have so far been ineffective. Progressives arguing before the Court have relied on precedent only to see those precedents tossed away in cases ending the right to abortion and outlawing affirmative action. They have grounded their arguments in history only to see the Court cherry pick research to achieve its desired results in cases diminishing the power of federal agencies. And, outside the courtroom, progressives have shone spotlights on Justices Alito’s and Thomas’ numerous conflicts of interest, only to have calls for the pair’s recusal fall on deaf ears in cases related to the January 6 insurrection.  

Yet in the wake of another devastating term, President Biden has announced no plan for Supreme Court reform. Instead, he seems content to patiently await a vacancy that may never arise to make his next appointment.   

Let’s be honest with ourselves—efforts to influence or reshape the Court short of structural reform are doomed to fail. Because justices currently have lifetime tenure, and experience has demonstrated that they will time their departures to coincide with ideologically sympathetic presidential administrations, there is no guarantee that another progressive presidency will result in any shift in the Court’s ideology.   

Meanwhile, as the Court places its thumb on the scale in elections, whether directly, as in Bush v. Gore, or more indirectly by diluting the Voting Rights Act, and unleashing unlimited corporate spending in elections, democracy may continue to erode.   

When they have the political power to do so, progressives must immediately expand the Court to reflect the diverse backgrounds, experiences and viewpoints of the nation, and impose term limits on justices (in line with other Western democracies).   

Opposition to these straightforward ways to restore democratic accountability have laid bare progressive ambivalences about democracy itself. Some progressive elites, and particularly legal elites who are wary of reigning in the Court point to (supposedly) counter-majoritarian decisions like Brown, Roe and Obergefell, which expanded rights for people of color, women and LGBT people, as reasons to preserve the Court’s power.   

But an overly romantic view of the Court risks breezing past the Supreme Court’s efforts to disempower vulnerable groups throughout its history in cases like Dred Scott, which held that Black people were not and could not be citizens, Plessy, which enshrined “separate but equal” for more than half a century, and Korematsu, which denied the constitutional rights of Japanese Americans interned during World War II, and throughout the anti-regulatory Lochner era. And it risks empowering a handful of unaccountable decisionmakers above the true levers of social change—the people.   

While the Supreme Court was a sometime ally to the movements of the 1950s, 60s and 70s, the true heroes of change were civil rights organizers and feminist activists who dared to imagine a brighter future. They pushed the nation (kicking and screaming) closer toward equity as reflected in the enactment of landmark legislation like the Civil Rights Act of 1964 and the Voting Rights Act of 1965.   

As the demise of Roe and its aftermath has made clear, victories that rely on the Supreme Court alone are fragile. Lasting protections for the most vulnerable must be won and defended through power building at all levels of society—not in the courts alone. Continued progress is possible, but only if we restrain a Court that is all too happy to defang or dismantle popularly enacted legislation.  

We must continue to call out the Court’s insidious efforts to undermine democracy. We must also hold progressive leaders, and especially the progressive bar, accountable for their role in enabling this erosion. And we must demand that the President and Congress take action to expand the Court and impose term limits. If they do not, it's difficult to see how the Court’s future terms won’t be darker mirrors of this one.   

The King (Presumptively) May Do No Wrong

This essay first appeared in The Regulatory Review.

The U.S. Supreme Court’s decision on former President Donald Trump’s claim of immunity from criminal prosecution—Trump v. United States—was its last full opinion of the October 2023 Term. For anyone hoping the Court would honor the rule of law in this gravest of disputes, the majority’s performance was frightening and demoralizing. With its eyes firmly averted from “present exigencies,” the Court wrote an opinion that paves the way to a yet more unaccountable presidency.

The dangers that the Trump decision poses are not so much in the shortest term—the timing of the Court’s consideration already assured that former President Trump’s D.C. trial would not occur before the presidential election. Indeed, it is even conceivable that, if Trump loses the November election, this opinion will not shield him from prosecution for all the crimes of which he has been accused. What is frightening about the opinion are its implications for the presidency going forward. If one is looking for the opinion’s analytic antecedent, the place to look is not in U.S. Reports, but in the 19-page letter then-private lawyer Bill Barr wrote to Department of Justice officials in June 2018, arguing that President Trump could not be prosecuted for obstruction of justice. Barr argued that, because of the President’s supposedly illimitable power over criminal prosecution, even self-interested interference with an investigation of his friends and family could not legally be deemed “corruption.”

The Court’s Trump v. United States holding is that, for purposes of determining the scope of a president’s immunity from criminal prosecution, it must first be determined into which of three categories the conduct in question falls. To begin, as former President Trump conceded, and the majority agrees, no immunity exists when the President engages in “unofficial acts,” a category the Court does not define. The Court is clear, however, that an “official act” does not become “unofficial” because of its motive. Thus, a presidential tariff imposed to help a son-in-law’s business would be no less official because of its illicit impetus. Echoing the uncited Barr analysis, the Court holds: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.”

At the other end of the majority’s immunity spectrum stand presidential actions within areas of “exclusive constitutional authority.” In that zone, immunity is absolute: “An act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions.” As for the judicial branch: “Neither may the courts adjudicate a criminal prosecution that examines such presidential actions.”

Remarkably, the Court cites as one such “conclusive and preclusive” Article II authority “the President’s power to remove—and thus supervise—those who wield executive power on his behalf.” The majority thus seems, in dicta, to have obliterated a limitation to its ruling in Seila Law v. Consumer Financial Protection Bureau—namely, that, following Humphrey’s Executor v. United States, Congress may protect the tenure of members of multi-member independent commissions from at-will presidential removal. As it happens, the constitutionality of independent agencies was neither briefed nor at issue in the Trump prosecution. But when writing “for the ages,” as Justice Neil Gorsuch foreshadowed in oral argument, perhaps judicial restraint does not come easily.

Between the realm of unofficial activity and the zone of “exclusive presidential authority” lies a third category: Presidents execute other duties “within the outer perimeter of…official responsibility.” For actions taken “not manifestly or palpably” in excess of this authority,” Presidents enjoy “at least a presumptive immunity from criminal prosecution.”(The italics are in the Court’s opinion.) How strong is that presumption? The Court’s majority hedges on whether the government can ever overcome the presumption. At the very least, the government cannot do so “unless the government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch.” (These italics are mine.) The majority never addresses whether any truly zero-danger scenarios could ever exist.

Because the majority sees the factual record as yet insufficiently developed to apply its framework fully, it offers only “guidance” to the lower courts in former President Trump’s case. That “guidance,” however, includes a conclusive determination that allegations in the indictment about Trump’s communications with the Justice Department “plainly implicate Trump’s ‘conclusive and preclusive’ authority.” Thus, such interactions may not be the basis for criminal prosecution.

The exclusive powers that the Court’s immunity protects include the “investigation and prosecution of crimes”—with the obligatory ceremonial citation to Justice Antonin Scalia’s dissent in Morrison v. Olson—and the power to manage the Attorney General, over whom the President has a plenary power of removal. Moreover, because conversations with the Justice Department may not be prosecuted as acts of conspiracy or obstruction, they also may not be introduced to show former President Trump’s knowledge that his claims of election fraud were false. According to the majority, any “use of evidence” about a President’s official conduct “even when an indictment alleges only unofficial conduct, would…heighten the prospect that the President’s official decision making will be distorted.” On this point, even Justice Amy Coney Barrett, in her partial concurrence, jumps ship.

Justice Barrett also states in her partial concurrence that President Trump’s “alleged attempt to organize alternative slates of electors” clearly amounts to private conduct and is “therefore not entitled to protection.” In light of the majority’s protectiveness of former President Trump with regard to his Justice Department interactions, one would have expected the justices to embrace Barrett’s seemingly incontestable conclusion, at least in the interest of a balanced assessment. Instead, the majority holds out rather fanciful reasons why the lower court, on remand, will need to undertake “a close analysis” to determine if President Trump’s pressuring his Vice President to act unlawfully or his attempted interference with state electoral processes was “official.” Likewise, the lower courts will have to examine all of President Trump’s January 6 tweets and other communications, plus his speech on that same morning, to determine if he was speaking as a candidate and party leader or, rather, in his official capacity. Such a factual assessment must reflect an “objective analysis of ‘content, form, and context,’” except that the examination of context presumably cannot include any mention of President Trump’s earlier efforts to leverage the Justice Department powers to perpetuate a lie about the outcome of the 2020 election.

What is demoralizing about the opinion—aside from its bottom-line threat to the rule of law—is its shallow, tendentious reasoning. The principal dissent by Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, takes on every element of the majority’s reasoning, asserting that under its theory of immunity, a President who “orders the Navy’s Seal Team 6 to assassinate a political rival” could not be prosecuted. Not for the first time, Chief Justice John Roberts is pointedly dismissive of a Justice Sotomayor opinion, in this case for “fear mongering on the basis of extreme hypotheticals.” Yet it is difficult to see why Justice Sotomayor’s reading is unjustified. The President’s supervisory authority over the military, after all, is no less “conclusive and preclusive” than is the presidential supervision of the Justice Department. Of course, Congress, at least in principle, could impeach and remove a murderous President. And Article I of the U.S. Constitution states explicitly that any official who is convicted following impeachment “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” The majority does not discuss how to square this language with its theory of immunity. Indeed, it purports to reject Trump’s argument that impeachment and removal are prerequisite to criminal liability.

Nonetheless, because the Court orders a remand, it remains possible—if former President Trump loses the 2024 election—that the new immunity framework, applied to his past acts, will not ultimately shield him from criminal liability in connection with January 6. There are clearly at least four votes already, including Justice Barrett’s, for characterizing much of Trump’s conduct cited in the indictment as private. If he is not in office and thus not empowered to stop the prosecution, the majority’s analysis, if applied sensibly, will prove an imperfect shield. What is frightening, however, is that the Court has effectively carved out what Justice Sotomayor appropriately finds to be a capacious “law-free zone” for future presidents. The majority’s analysis, in the hands of as rule-oblivious a figure as former President Trump, lays out a legal template for how to justify breaking the law with impunity. It is notable that, armed with this opinion, President Richard Nixon would certainly have had plausible arguments in 1974 that many, if not all of the acts mentioned in the articles of impeachment adopted against him by the House of Representatives Committee on the Judiciary could not constitutionally have formed the basis for any criminal prosecution. He might still have resigned, but the pardon granted to him by President Gerald Ford would have been unnecessary.

It is the imbalance in the Trump Court’s opinion, as well as its obliviousness to history, which makes the decision so discouraging, as well as dangerous. The Court makes no mention of the Nixon pardon. Nor does it cite earlier executive branch legal opinions positing the susceptibility of a former President to criminal prosecution for acts undertaken while in office. It ignores the position taken by Senators at Trump’s second impeachment trial who explicitly accepted his lawyers’ argument that accountability for his malfeasance in the events leading up to January 6 lay with the criminal justice system. An amicus brief that Justice Sotomayor cites favorably (which, in full disclosure, I joined), points out that although some early state constitutions spell out immunities for governors, the Framers adopted no such text.

Instead, the majority’s analysis is driven entirely by a historically dubious interpretation of the constitutional presidency. Under this view, the President is constitutionally the “only person who alone composes a branch of government”—a depiction that, at the very least, makes the Constitution’s reference to the “executive departments” puzzling. Within the President’s zone of constitutional authority, there can be no “intrusion” by the other branches. Neither Congress’s power to enact laws about every “department,” or “branch” of government, nor the premise underlying an independent judiciary—namely, that law will apply equally to all—is ever accounted for. Instead, the President must have maximum leeway to undertake “bold and unhesitating,” “energetic and vigorous” action without concern for obedience to law. In response to Justice Sotomayor’s inferences from the Constitution’s silence on executive immunity, the majority responds: “True, there is no ‘presidential immunity clause’ in the Constitution. But there is no ‘separation of powers clause’ either.” What this riposte ignores is there is also in the Constitution no “checks and balances clause” and no “rule of law” clause. Yet it is beyond doubt that the Constitution envisions both, and each is more firmly rooted in the Constitution’s text, history, and tradition than is a formal, wooden conception of the separation of powers.

In separation-of-powers clashes prior to the Roberts Court, the majority’s predecessors preferred to rely on balancing rather than placing the President inside an impervious bubble. When a unanimous Court rejected President Nixon’s claim of absolute immunity in connection with the Watergate tapes, it recognized that there were competing interests to be weighed:

When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises…In designing the structure of our government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

In upholding the Presidential Recordings and Materials Preservation Act—Congress’s initial scheme for regulating the curation of the Watergate tapes—the Court held that, whenever courts confront a statute touching on the executive branch of government, it must determine whether the act in question “disrupts the proper balance between the coordinate branches”:

The proper inquiry focuses on the extent to which it prevents the executive branch from accomplishing its constitutionally assigned functions. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.

In former President Trump’s case, such balancing would seem relevant—and, indeed, conclusive—in finding that a President might be criminally indicted for conspiring to subvert Congress’s proper performance of its constitutional role in determining who is the President-elect. The Court never even discusses the proposition.

In short, Trump v. United States places no weight on the constitutional authorities of Congress or the judiciary—much less on the public interest in promoting the rule of law through criminal prosecution. Instead, the majority explicitly states that it is less worried about presidential criminality than “the more likely prospect of an executive branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.” If such fecklessness is “more likely,” it is chiefly because of a 2024 presidential candidate who, in a prior campaign, called for the imprisonment of his opponent, who, while President, called for the prosecution of members of Congress investigating him, and who, in this campaign season, has raised the prospect of targeting his adversaries if reelected—even by subjecting them to military tribunals. After Trump v. United States, a reelected President Trump could more easily pursue any of these actions with impunity.

Peter M. Shane is Distinguished Scholar in Residence and Adjunct Professor of Law at the New York University School of Law, and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at The Ohio State University Moritz College of Law. He also serves on the ACS Board of Directors and ACS Board of Academic Advisors.

 

U.S. Labor Unions Are Having A Moment

USSW health and safety rally on April 4, 2023. Photo Credit: Dorothy Singletary, SEIU

The labor movement has been experiencing a recent renaissance in the American zeitgeist. Overall, a majority of Americans (55%) say labor unions positively affect the country. Millennials and Gen Z, the next generation of workers, are more pro-union than older generations, with Gen Z being the most pro-union generation alive today. Furthermore, in the past 24 months, we have seen huge labor wins including the Teamsters winning historic protections and wage increases for its UPS members, United Auto Workers winning 25% raises for employees’ new contracts with the Big 3 automakers, and nearly a million Americans receiving double-digit raises as a result of unionizing.

High unionization levels are associated with positive outcomes for workers and their communities. For example, union membership has been shown to narrow the racial wealth gap, by closing the distance between the wealth of white households and households of people of color. Women represented by unions earn 9.5% higher wages on average than non-unionized women with comparable characteristics. States with high union membership tend to have lower uninsured populations, are more likely to pass paid sick leave laws and paid family and medical leave laws, and have significantly less restrictive voting laws. 

Despite these wins and favorable opinions and outcomes, nationwide union membership is still stagnant. In 2023, 11.2% of U.S. workers were union members, with only 6.9% of private sector workers being unionized. The disparity between support for unions and actual union membership numbers is largely a result of our outdated, weak, and historically racist labor laws. Before reviewing the current state of labor, it is necessary to review the historical context in which these laws were created and whom they were intended to benefit or not benefit.

Is Broken Labor Law Working as Intended? 

Economic struggle has always been the cornerstone of the American landscape. At its inception, the country’s economic and social systems were created and built around the use of slave labor. Even when Black slaves were set free, they were met with racist state laws and physical violence to ensure that they continued to effectively work for free for their former masters.

Furthermore, when white supremacist legislatures were confronted with newly freed workers and a new voting electorate, they passed laws to prevent local labor regulation. Throughout the South, new Black citizens made up a majority or at least a sizable portion of the new electorate. With the fear of Black voters mobilizing and exercising power at the local level, state legislatures worked to consolidate power at the state level where white supremacy was stronger. This was done through preemption — a legal doctrine that gives higher governments, such as federal or state governments, the power to limit or block lower governments from legislating on specific issues.

Fast forward to the New Deal Era, when Congress passed supposedly “race-neutral" policies to help Americans recover after the Great Depression. However, racist Southern congressmen worked to exclude Black workers from the New Deal to preserve “the quasi-plantation style of agriculture” that pervaded the South. As a result, agricultural and domestic workers, primarily Black dominated industries, were excluded either explicitly or in practice from the Social Security Act of 1935, the Fair Labor Standards Act of 1938 (“FLSA”), and the National Industrial Recovery Act of 1933, which was the predecessor for the National Labor Relations Act of 1935 (“NLRA”). This meant that most Southern Black workers were excluded from old age benefits, unemployment insurance, minimum wage protections, maximum working hour restrictions, and other labor protections.

The present-day NLRA continues to exclude agricultural and domestic workers. In a similar vein, the NLRA and FLSA effectively exclude other workers from basic labor protections by limiting which workers and businesses are covered by these laws. Businesses have taken advantage of these loopholes by creating fissured workplaces through outsourcing, contracting or subcontracting, franchising, or outright misclassifying workers as independent contractors or supervisors. As a result, workers have limited power to make demands on businesses because they are unclear about who actually controls their working conditions.

Furthermore, the NLRA relies on an outdated model of unionizing which requires workers to organize worksite by worksite. However, many low-wage jobs, which again are disproportionately held by people of color, are unable to achieve such feats. For example, low-wage service jobs, such as those in the fast food and retail industries, experience high turnover rates and unstable scheduling, which makes it difficult for workers to build a community, much less run a successful union organizing drive at their workplace. Workers who still choose to organize their workplace despite these obstacles are likely to face long, drawn out negotiations to get a first contract or outright retaliation in the form of discipline, reduced hours, and even firing. Even worse, workers can wait months or even years to be reinstated or receive back pay after being discharged.

Not only do many workers face insurmountable obstacles to unionizing, but predominantly white state legislatures are still using preemption to prohibit local governments from raising labor standards, such as minimum wage standards that “would disproportionately benefit Black workers and other workers of color, as well as women and low-income workers.” Furthermore, several Southern states have also passed so-called right-to-work (RTW) laws that prohibit a union from collecting any fees from employees in a bargaining unit who are not members of the union, even though these non-members receive benefits from union contracts. These laws are used to diminish unions’ financial strength and in turn, their ability to negotiate better wages and working conditions. It is also no coincidence that Black workers in RTW states tend to have lower wages than those in states without RTW laws.

Case Examples of How Unions are Responding to Broken Labor Laws

Union of Southern Service Workers, Service Employees International Union

Southern workers face significant challenges when organizing their workplaces. The Southern economic model relies on low wages, anti-union laws, weak state-level labor protections (especially when compared to other regions), and a lack of government oversight to attract businesses. These tactics are clearly working because Southern states have some of the lowest rates of union membership in the country.

In 2022, the Service Employees International Union (“SEIU”) launched the Union of Southern Service Workers (“USSW”). USSW recognizes the challenges in organizing Southern low-wage service workers, including the continuation of racist laws, as well as the persistent use of the low-wage service sector model with its unstable scheduling and high turnover rates. To address these issues, USSW does not seek to unionize workers worksite by worksite under the NLRA’s framework. Rather, USSW is focused on cross-sector organizing at various stores in different industries including retail, warehouse, fast food, and home care.

With the support of USSW, workers are organizing across the South to address workplace issues regardless of their formal or legal union status. For example, Burger King workers in Atlanta, Georgia, held a rally to demand safe working conditions, saying that a broken air conditioner in their store resulted in high heat that posed health risks. Working in extreme heat conditions is a fairly common occurrence in many jobs across the country. Several other workers employed at different fast food restaurants and in different industries who were experiencing similar issues also spoke out at the protest. As a result of the protest, Burger King’s corporate office contacted the franchise that owned the store and told them to fix the air conditioning. This story shows the true power of USSW. One or two workers speaking out about workplace issues would have likely not resulted in any change, especially where the workers are directly employed by a franchisee but many of their working conditions are determined by the corporation. However, when multiple workers across industries band together, they can elevate their workplace demands.

Airport Workers United, Service Employees International Union

Likewise, labor unions and workers have had to adapt to organizing workplaces with the rise of contracting and subcontracting. For example, SEIU’s Airport Workers United (“AWU”) helps to organize low-wage airport service workers–including baggage handlers, cabin cleaners, fuelers, and airport wheelchair agents–many of whom are people of color and immigrants. Prior to the passage of the Airline Deregulation Act of 1978 (“ADA”), this group of workers was typically employed directly by the airlines. However, over the past two decades, airlines have almost entirely contracted out these jobs to airline service providers. Under a subcontracting model, the lowest bidder usually wins these contracts by reducing labor costs through lower wages and benefits for employees.

To combat this issue, the AWU implemented a dual strategy of organizing workers, as well as pushing for local living-wage measures that would apply to many airport service workers. This dual strategy was born out of concern that if the union negotiated raises for an airport contractor’s workers, then that contractor could lose out in competitive bidding to a non-union contractor that paid lower wages. This strategy proved successful and won raises and improvements for over 150,000 airport workers, including getting a $19 minimum wage for New York area airport workers.

However, this approach is not without its challenges. While some airport service workers have won higher wages and benefits under this approach, state or federal minimum wage requirements still govern many major airports. In several states, the federal minimum wage still controls and requires payment of only $7.25 per hour. Many local governments that want to pass minimum wage and other labor standards for airport workers are likely to be met with federal or state preemption challenges. To avoid a patchwork of various wage and benefits standards at U.S. airports, AWU has been advocating for national legislation such as the “Good Jobs for Good Airports Act,” which aims to ensure airport service workers in the United States receive a living wage and important benefits like health care.

How Can We Help Workers? 

While workers and unions are learning to adapt to organizing modern workplaces, the takeaway lesson is that it should not be this difficult for workers to organize and win better wages and working conditions. It is imperative that we improve protections for workers. Congress must pass stronger labor laws including raising the federal minimum wage and eliminating loopholes in current labor laws. Likewise, Congress must also increase funding for agencies that are charged with helping workers, including the National Labor Relations Board and the U.S. Department of Labor. Similarly, state and local governments must enact higher labor standards and increase funding for their state labor agencies.

____________________________

 

Dorothy Singletary is Assistant General Counsel at the Service Employees International Union.

An Integrated Work Law

Workers and their advocates have recently experimented with various hybrid approaches to exercising their rights, combining traditional labor and employment laws with antitrust law, consumer law, and other doctrines. This raises the concept of what one of us has called an “integrated” work law. An integrated work law is both an empirical descriptor of the large swath of laws that regulate work and an assertion that sometimes another body of law can supplement or even take the place of traditional labor and employment law, at least when those laws leave workers inadequately protected. This approach is not new. Reforms dating back to the New Deal combined seemingly disparate legal doctrines to protect workers in all of their capacities as workers, consumers, and market and civic participants.

From Jobs for Life to “Fissured” Labor

When Congress passed the National Labor Relations Act (NLRA) in 1935, the typical workplace scheme was fairly simple. There were the officers who made executive decisions, the managers who oversaw operations, and the employees who were laboring on the shop floor. The dominant mode of income was through wages earned as an employee, and the mutual expectation was that the employee would hope to stay with the firm long-term. The statutory definitions of terms like “employer,” “employee,” and “supervisor” were shaped accordingly. What the NLRA’s drafters likely could not have foreseen at the time was how radically this familiar scheme would transform as the United States careened into the twenty first century.

Now, we live in a world where the employment relationship is all but straightforward. Massive conglomerates have swallowed up smaller competitors, creating ambiguities as to who, if anyone, is the employer of a given worker. Labor economist David Weil has called this the “fissuring” of the workplace. Firms outsource, offshore, and subcontract labor, and frequently misclassify wage-earning employees as independent contractors who receive none of the benefits that attach to the employment relationship. Moreover, the explosion of franchising has allowed firms to profit from their branding while shielding themselves from liability for the employment law violations of their franchisees. And many firms no longer feel the need to cultivate skilled long-term employees as a model for financial success.

The Current State of Work Law

Who can these fissured workers unionize with? Who can they seek relief from if they face abuse in the workplace? Because only formal “employees” are covered under the NLRA and employment laws like the Fair Labor Standards Act (FLSA), and Title VII of the Civil Rights Act of 1964, a growing number of workers are losing essential legal protections. Thus, the NLRA and other foundational workplace laws have not caught up with the realities of the modern fissured workforce, much of which was influenced by firms seeking to avoid liability under those very laws.

Workers’ Advocates and Regulators Using Other Legal Regimes

If workers and the labor movement were allowed to exercise their rights under only one set of laws, this would be highly problematic. Nevertheless, workers, their advocates, and government regulators have turned to other doctrines outside the traditional realm of labor and employment law, making particular use of laws addressing competition and consumers’ rights.

For example, Lina Khan’s appointment in 2021 as Chair of the Federal Trade Commission (FTC) has heralded a new era of pro-labor antitrust pursuits. In Chair Khan’s formulation of antitrust law, employer suppression of labor competition is an antitrust concern within the scope of the FTC’s mandate to address unfair methods of competition. It’s with this understanding that the FTC recently announced a new rule banning non-compete agreements and their functional equivalents, such as Training Repayment Agreement Provisions (TRAPs) that effectively keep workers from leaving before a set period of time due to repayment obligations for ostensible training costs. This is a sea change in a country where close to one in five employees are subject to non-compete agreements. Once, antitrust laws were used to criminalize labor activity. Now they’re being marshalled to protect workers from employer attempts to restrict worker mobility. And, importantly, the FTC rule covers workers like independent contractors who are not classified as formal employees and are thus unprotected under traditional labor and employment laws.

Consumer law is another emerging field of worker protection. Unfair and deceptive acts and practices (UDAP) laws, enacted primarily to protect end-user consumers, are also now being used to protect workers as consumers when a firm sells its workers services like financial products, training, and marketing assistance. For instance, TRAPs are often deceptively advertised to medium- and low-wage workers as providing transferable skills, yet offer minimal training and impose high “quit fees” if the worker leaves in the first few years. Many employees are thus locked into these jobs for years.

Workers are pushing back, though, combining traditional employment and consumer law claims. For example, former PetSmart groomer BreAnn Scally used both California employment and consumer protection laws to challenge PetSmart’s alleged demand for $5,000 to pay back a TRAP for its “Grooming Academy” that she claimed was little more than a few sessions and then regular work grooming pets. She argued that if the training was primarily for PetSmart’s use, state employment laws should require that PetSmart pay for it and, if it was primarily for BreAnn’s personal use, state UDAP laws should declare the TRAP void. In essence, BreAnn asserted, the company could choose which body of law should apply, but it would not be able to escape liability altogether. The FTC has also turned its attention to using its UDAP authority to protect gig workers, who are often misclassified as independent contractors and face deceptive pay policies.

Workers’ Stacked Identities

What are the theoretical justifications for using an assortment of legal doctrines to protect workers? Worker advocates rightly acknowledge that workers stack multiple identities and should be viewed in light of all of them. This perhaps gets us closer to what labor organizer Jane McAlevey calls “whole-worker organizing”: an organizing model that seeks to get workers “to see the connections between corporate domination of their work lives, their whole lives, and their country’s political structure.” This form of organizing acknowledges the worker as more than a worker. Workers are also members of religious institutions, parents, neighbors, and community members. By extension, their formulations as economic participants also vary. For as much as they work, they are also consumers, renters, and student and medical debtors. As forms of corporate domination expand into all areas of life, these roles have become less and less distinct. Hence, we endorse new forms of advocacy that reshape and transform various areas of law into an integrated work law.

An Integrated Work Law is Not New

Though these approaches may seem novel, the effort to integrate different areas of law to benefit workers has a rich tradition going back to the beginnings of New Deal legislation. The National Industrial Recovery Act of 1933 (NIRA) was an all-encompassing attempt to pull the working class from the destitution of the Great Depression by providing competition requirements, consumer protections like price controls, minimum wage guarantees, a right to unionize, and an agency that extended grants to reduce unemployment. Supported by unions, NIRA was labor law (the NLRA is one of its surviving offspring), but it was also a law creating consumer protections and regulating public employment to benefit job seekers. The scope of NIRA’s mandate was expansive and it fell out of favor first with big business, then the Supreme Court. It remained popular with many workers, however. NIRA is regarded by some as a policy failure. However, it would more accurately be described as the baby steps of an integrated law approach to an industrialized economy—one that sought to address the plight of the worker as a whole, not simply through their workplace conditions.

Later, the Civil Rights Act of 1964, enacted as part of President Johnson’s Great Society program, prohibited discrimination on the basis of race, color, religion, sex, or national origin in broad swaths of American public life. The legislation outlawed segregation in businesses and schools and required equal voting rights, striking at deeply embedded prejudices throughout society. As part of that goal, it also prohibited discrimination in the workplace. This Act understood that discrimination was a social concern as much as it was a workplace concern, and that society-wide inequality permeated into workplace conditions. Indeed, Dr. King insisted that workers’ rights and full employment were part and parcel of the Civil Rights Movement.

Worker organizing and advocacy in the modern fissured workplace requires innovative approaches blending different legal fields, especially as the lines between work and other areas of life blur. Outside of the United States, a European “social law” has long eschewed the U.S. compartmentalization of legal doctrines, instead recognizing workers with their stacked identities and protecting them accordingly. We’re seeing new gestures toward this hybrid approach today in the United States. While workers and their advocates chart new territory, though, they do so as descendants of those who fought for such integrated approaches dating from the New Deal.

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Jonathan F. Harris is an Associate Professor at LMU Loyola Law School Los Angeles and a Senior Fellow at the Student Borrower Protection Center.

 

 

 

 

Dylan R. Holmes is an Associate at the labor law firm Weinberg, Roger & Rosenfeld.

Amazon, SpaceX and Other Companies Are Arguing the Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional

Image: Senator Robert F. Wagner of New York, author of the Wagner Labor Relations Act.

Library of Congress, Prints & Photographs Division, photograph by Harris & Ewing, LC-DIG-hec-22542.

This article originally appeared in The Conversation.

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since the days of the New Deal – could collapse. That would leave U.S. workers more vulnerable to exploitation.

The Supreme Court upheld the constitutionality of the board nearly a century ago, soon after President Franklin D. Roosevelt signed the law that created the NLRB and made clear that workers have the right to organize and bargain collectively. Justices have also rejected similar arguments in cases involving other agencies.

As a law professor who researches labor law and constitutional law and a former labor organizer, I am deeply concerned, but not surprised, by these attacks on the federal agency that has protected U.S. workers’ right to organize unions and bargain collectively with their employers since the 1930s.

These corporations seem to believe they will find a sympathetic audience before the conservative justices that occupy six of the Supreme Court’s nine seats. In a series of prior cases, the conservative justices have already weakened administrative agencies and cut back on workers’ rights.

Growing support for unions

The corporate attack on the NLRB also seems to be a response to growing support for unions among Americans.

Workers at the companies that are challenging the NLRB’s constitutionality have all begun to organize unions in recent years, with numerous, high-profile, union-organizing wins. Workers across numerous sectors, including auto, education, health care and Hollywood, have recently held successful strikes.

What’s more, the NLRB has been more assertive in prosecuting employers for violating workers’ rights, and it has been revising rules in ways that make it easier for workers to organize.

For example, it has made it possible for the unionization process to move faster and has sought to quickly reinstate workers who are illegally fired for organizing unions, rather than waiting years for litigation to play out.

The Supreme Court and big business

This is not the first time that big business has tried to use constitutional law arguments in an effort to stop union organizing and limit workers’ rights.

From the 1890s to the 1930s, during what is known as the “Lochner era,” corporations argued that laws protecting workers’ rights, including the right to organize unions or be paid a minimum wage, violated their “freedom to contract” and exceeded Congress’ power under the Constitution.

Back then, the Supreme Court routinely sided with business.

It struck down hundreds of laws, including minimum wage laws, overtime laws and laws prohibiting child labor. It prohibited strikes, including in the railroad and mining industries. It allowed labor leaders to be jailed.

These rulings helped corporations grow wealthier and more powerful.

Only after mass uprisings by over 1 million workers, economic distress wrought by the Great Depression and overwhelming popular support for the New Deal did the Supreme Court finally change course, recognizing that it had made a mistake.

During the New Deal, the justices ruled that Congress has the power under the Constitution to pass minimum labor standards and to create agencies, such as the National Labor Relations Board, to protect workers and consumers.

Letting agencies make decisions

Now, nearly 100 years later, the NLRB’s foes contend that the labor board violates the separation of powers – the constitutional principle that the judicial, legislative and executive branches of government have distinct powers – because it mixes executive and judicial functions.

They also argue that the board is unconstitutional because presidents cannot fire the NLRB’s members or administrative law judges whenever they want.

And opponents of the NLRB claim that the use of administrative law judges – jurists who preside over and adjudicate cases regarding alleged violations of the law – violates the constitutional right to a jury trial.

But the Supreme Court has long permitted all of these features, not only for the NLRB but for other government agencies as well.

And for good reason.

No provision of the Constitution prohibits Congress from designing government agencies in this way. And Congress believed that these design choices would help the agency function well.

For example, by prohibiting presidents from replacing all of the NLRB’s administrative law judges for any reason or no reason at all, Congress sought to ensure independence of those judges.

Having each violation of law litigated before a federal jury, rather than administrative law judges deciding cases, could take a lot longer to resolve cases.

Assessing what’s at stake

If these corporations prevail with their constitutional challenges, the NLRB will no longer be able to function.

Currently, it can be very difficult for workers to organize unions, partly because of insufficient penalties and protections in labor law. But if the corporations win, there will no longer be an agency in place to safeguard workers’ rights to organize unions and to negotiate fair contracts with their employers.

Indeed, this threat goes beyond labor rights.

If the NLRB is found to violate the Constitution, other government agencies could be at risk as well, including the Securities and Exchange Commission, the Federal Election Commission and the Federal Trade Commission. In my view, that would endanger investors, voters and consumers – all Americans.

There is reason to believe the Supreme Court could side with big business if a lawsuit challenging the board’s constitutionality reaches it.

The Supreme Court in its current configuration is more pro-business than it has been in a century. The justices who make up its conservative majority have shown that they are willing to overrule long-standing labor precedents through decisions that have reduced union funding and restricted workers’ access to unions.

The conservative justices have also indicated that they may limit the powers of administrative agencies beyond the NLRB. Most notably, the conservative majority on the court recently crafted a rule known as the “major questions” doctrine, which says Congress must set particularly clear rules when it authorizes agencies to regulate on matters of political or economic significance.

Using this doctrine, the court has overturned a Biden administration regulation designed to protect the environment and has rejected its initial student loan forgiveness program.

The Supreme Court is hearing several other cases this year that threaten administrative agencies, including one that would allow courts to give less deference to reasonable agency rules and one that challenges the use of administrative law judges by the Securities and Exchange Commission.

Seeing room for optimism

There is no way to know for certain how the Supreme Court will rule on a case concerning the constitutionality of the NLRB or other federal agencies. There may not be enough votes to overturn years of well-established precedent, even among the conservative justices.

And on labor rights more generally, there is reason for optimism.

Workers are organizing in greater numbers than they have in decades. History teaches that when there is sufficient popular support for unions and workers’ rights, and sufficient mobilization among workers, the Supreme Court sometimes backs off and corporations give up their fight against workers’ rights.

Indeed, even Starbucks recently agreed to begin negotiating with its workers after years of illegally – according to the NLRB – refusing to bargain with them.

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Kate Andrias is the Patricia D. and R. Paul Yetter Professor of Law at Columbia Law School.

The Long (Successful) Battle to Count Arab Americans

Last month, the Office of Management and Budget (OMB) announced revisions to the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, known as Directive 15. The revisions, the first since 1997, include the historic addition of a new “Middle Eastern or North African” (MENA) minimum reporting category, the use of a combined question format to collect race and ethnicity data, and the requirement of more detailed data collection by federal agencies are welcomed steps toward the modernization of federal race and ethnicity data.

For Arab Americans, the MENA category represents the first time our community will have a full and accurate accounting on the U.S. census.

How Accurate Data Helps Arab Americans

 The 1997 Standards, in place for the last 27 years, defined people from the MENA region as exclusively racially white, rendering Arab Americans invisible in the data and erasing the racial diversity of an ethnic community. In so doing, it has fueled a dramatic undercount of Arab Americans, limiting our access to much needed government services, and our ability to protect our rights. Better data on Arab Americans derived from a new MENA ethnic category is of paramount importance to community interest.

Since the 2020 census, we’ve seen direct examples of how harmful the invisibility of Arab Americans in data can be for our communities. In Michigan, new State House districts in the Dearborn, Dearborn Heights and Detroit areas split the Arab American community in 2021, diluting the community’s vote. The Detroit Metro area has the largest concentration of Arab Americans in the country, but the redistricting effort cut them out of the legislative process by splitting the community among three districts – ensuring no single district has an Arab American majority.

Because Arab Americans were classified exclusively as White when the redistricting committee considered race and ethnicity data from the census for Voting Rights Act purposes, the community was not accounted for.  It also hindered efforts to present Arab Americans as a “community of interest,” a factor in redistricting considerations that helps keep shared economic or social interest, as well as ethnic populations, together. Without raw census data, community leaders had to rely on estimates when presenting the Arab Americans in the Dearborn area as a community of interest. Because of our invisibility in census data, our most concentrated community would not necessarily have full representation in their own state legislature.

The harm, of course, goes beyond redistricting. Census data affects the availability of educational rights, language access, health research, and community-centric grants at all levels of government. One of the most egregious examples of how our community’s invisibility in data collection has negatively impacted our community is the way information on hate crimes against Arab Americans has historically been disseminated. Each year, the FBI releases Hate Crime Statistics – a report of all bias-motivated crime each year. According to our research, in 1992, the FBI intended to publish anti-Arab hate crime data in the first edition of Hate crimes statistics, but before publication, Bias Motivation Code 31—the anti-Arab code—was removed. At the time, the FBI cited Directive 15 as the reason for removal. As a result, anti-Arab hate crime was excluded and recoded in federal statistics for decades under an aggregate category, even when many state law enforcement agencies continued to submit data on anti-Arab hate crimes during this period. It was not until 2015, when Code 31 was added back to Federal hate crime reporting, that data on hate crimes against Arab Americans became available.

Already, we’ve seen what visible inclusion in federal forms can do. Not only did the FBI Reporting Program start collecting data and publishing statistics on bias-motivated violence against Arab Americans, but the Bureau also developed training materials to ensure law enforcement personnel across the country are better equipped to report, investigate, and respond to anti-Arab hate crimes.

History of the Push for a MENA Category

 The push for a MENA category has been a decades-long endeavor for our community. Accurate counting of the Arab American population has been a central part of the Arab American Institute’s mission, beginning in the late 1980s when AAI first worked with the U.S. Census Bureau to ensure all Arab Americans were counted in the 1990 census. To that end, in 1994, AAI helped launch the Ancestry Working Group to support the Census Bureau’s efforts to decrease systemic undercounting of Arab Americans.

Because of these community-led efforts to get better data on Arab Americans, when the federal government took efforts to study and improve the accuracy of demographic data in the late 1990s, the Arab American community was ready to respond. During the 1997 review of federal standards to measure race and ethnicity in the United States, for example, OMB opened a comment period on the standards for reporting race and ethnicity, resulting in multiple comments about the need for an “Arab or Middle Eastern” category, especially as a means of tracking discrimination. Upon review, OMB concluded that demographic accuracy required further research on such a category.

The 2000 decennial census supplied further evidence that Arab Americans didn’t fully see themselves on existing forms with an increase of Arab ancestry reporting in the “some other race” category. This evidence, along with the comments from the 1997 revision and continued community advocacy, pushed the Census Bureau to explore a new category on the 2010 Alternative Questionnaire Experiment (AQE). The 2010 AQE, which tested variations of race and ethnicity data collection, included focus groups on Middle Eastern and North African respondents. Findings from the test supported the need for a distinct MENA category.

In the 1980, 1990, and 2000 decennial censuses, the census long form included a question on ancestry and ethnic origin. The long form was only administered to a portion of the U.S. population leaving an accurate count of Arab American ancestry groups dependent on the sample methodology applied to a small, unevenly distributed population. Community leaders worked overtime to make sure Arab American communities knew where and how to find the question in an effort to collect usable data from an unknown sample population. After the elimination of the long form in 2010, AAI formed the MENA Advocacy Network to formally organize communities around securing a distinct MENA ethnic reporting category.

In 2014, the Network presented their research, showing the current (and historical) undercount of communities within the category to the Interagency Working Group on Race and Ethnicity. Later that year, when the Federal Register notice announced the testing of a MENA category, the Network mobilized our community resulting in more than 13,000 favorable public comments–a record number. Unfortunately, despite favorable testing results on the Census Bureaus’ 2015 National Content Test, and a recommendation from the Census Bureau to include the MENA category on the 2020 census, the category was not added, leaving the Arab American community, and others encompassed in the category without an accurate accounting of our populations.

Undaunted, stakeholder organizations continued to push for changes to federal data collection, including a MENA category. After OMB announced a formal review of the race and ethnicity standards in 2022, an Interagency Technical Working Group was formed to aid in the process. On January 27, 2023, OMB published a Federal Register Notice seeking the public’s comments on the Working Group’s initial proposal for updating the Standards. After a successful comment period that saw more than 20,000 comments, the OMB announced the new revisions to Directive 15, which included the historic addition of a MENA minimum reporting category.

Where We Go From Here

The inclusion of a MENA category in federal data collection will not magically fix the harms of decades of undercounting. Nor will the category’s implementation happen overnight. Indeed, we will continue to advocate for our recommendations for the category to get to an accurate count that fully reflects the full racial and geographic diversity of the MENA category. Yet, the new Standards marked a historical moment for data equity, even if some tweaks are still needed.

With the new Standards, we can go into the 2030 get-out-the-count efforts with the expectation of data which, for the first time ever, can help make the case for improved protections against discrimination, tailored research for our health concerns, support for our children in schools, and the empowerment of our political voice, among the many other benefits of accurate data collection. It is a win for our community—and our democracy.

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Maya Berry is Executive Director of the Arab American Institute (AAI), a non-profit, nonpartisan, national civil rights advocacy organization founded to nurture and encourage direct participation in political and civic life to mobilize a strong, educated, and empowered Arab American community. She was previously the Legislative Director for House Minority Whip David Bonior, and currently serves as the Co-Chair of the Hate Crime Task Force at the Leadership Conference for Civil and Human Rights and on the board of Public Citizen.