This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.
The story of the Affordable Care Act is as twisted and bizarre as anything ever written by Stephenson, Kafka, or Orwell. It is an Act that saw the President oppose his signature legislation, before he supported it, and that saw the President’s challenger sire the Act, before he disowned it. The Act sparked conservative outrage around the country, though it was conceived in the heart of the conservative movement. It passed only through handouts to some States, but was partially stricken as violating the financial free will of all the States. And, of course, it is an Act that raised…
How would you like to live in a world where the federal government had to pay you every time it required you to do something? Would you rather watch football than do your taxes? Send a bill to Washington. Hate filling out that pesky form from the Census Bureau? Demand that the government pay you for your time. Ditto every other federal law or regulation that forces you or your company to do anything. Although this libertarian fantasy world is unlikely to materialize anytime soon, a recent pro-union decision may open the door to state constitutional challenges to federal regulations – or, at the very least, highlight the dangers inherent in results-oriented jurisprudence.
In The Lord of the Rings: The Fellowship of the Ring, the hobbit Frodo Baggins receives a disconcerting glimpse into the future from a prescient elfin queen. As he peers into the queen’s silver basin, Frodo is told that the mirror “shows many things . . . things that were . . . things that are . . . and some things that have not yet come to pass.” At first, Frodo sees pleasant images from the past of he and his hobbit colleagues relaxing at a bar, perhaps during a hobbit happy hour. Soon, however, the mirror shows a far less hospitable world. In this glimpse of the near future, hobbits are forced to work in large sweatshops run by unfeeling Orcs who focus solely on the bottom line. The Orcs constantly pressure the hobbits to increase their productivity, on pain of permanent downsizing. After Frodo pulls away from this nightmarish vision, the elf queen warns him, “I know what it is you saw, for it is also in my mind. It is what will come to pass if you should fail.”
In The End of Lawyers, attorneys and law students receive similarly disconcerting warnings about the future of the legal world from noted author Richard Susskind. First published in 2008 and rereleased in 2010, The End of Lawyers predicts that the Internet will force lawyers to provide services far more efficiently and economically (read, cheaply), or else become casualties of disintermediation. Many of the book’s predications have already come to pass, and many of its observations seem almost trite today, at the end of 2012.
“What Jefferson was saying was, Hey! You know, we left this England place ‘cause it was bogus; so if we don’t get some cool rules ourselves – pronto – we’ll just be bogus too! Get it?”
— Jeff Spicoli, Fast Times at Ridgemont High (1982)
This fall, the D.C. and Fourth Circuits will hear two parallel challenges to a union-notice rule promulgated by the National Labor Relations Board. The NLRB’s rule would require virtually every private company in the country to post a Notice advising employees of their right to organize a union and to strike. In justifying the rule, the NLRB explained that most employees do not know about their labor rights … as evidenced by surveys of high school students in the 1980s. The NLRB also relied on anecdotal evidence from “West Germany” and a remarkably contorted statutory analysis. If the circuit courts split, as the district courts split below, the cases could easily wind up in the Supreme Court.
The NLRB finalized its notice-posting rule in August, 2011, over a vigorous dissent from the NLRB’s lone Republican member. Not surprisingly, the rule was seen by many observers as a political move designed to reward President Obama’s union allies. In its 76-year history, the NLRB had never before asserted the broad authority to require employers to post such a Notice, or indeed to take any affirmative act outside the context of a union election or alleged misconduct. The NLRB received 7,000 comments on the proposed rule. Most opposed it. Employer groups complained that “the notice reads more like a union manifesto than an unbiased explanation,” and that “the Notice makes no pretense about the poster’s primary purpose – the promotion of union organizing.”
Amidst a series of setbacks at both the ballot box and the court house, the fate of the compulsory union movement may depend in large measure on the outcome of two lawsuits currently pending in Indiana. In early 2012, Governor Mitch Daniels signed into law a bill that made Indiana the nation’s twenty-third right-to-work state. Unions have filed two challenges to that law, one each in state and federal court. The outcome of those lawsuits will help to determine whether Indiana remains a right-to-work state and whether other states follow Indiana’s lead.