The Employee Free Choice Act is Unconstitutional

The Wall Street Journal ^ | December 19, 2008 | Richard A Epstein

[St. Louis Conservative]

A top priority of the incoming Democratic Congress and Obama administration is the misnamed Employee Free Choice Act. The EFCA, as is well known, introduces a card-check procedure that allows a union to gain recognition without an election by secret ballot. Thereafter a government arbitration panel can impose, without judicial review, all the terms of an initial two-year collective "agreement" if the parties cannot negotiate an agreement within 130 days.

It is commonly supposed that economic regulation is immune to constitutional challenge since the New Deal. That's not the case with this labor law.

Consider card check and the First Amendment. Under the National Labor Relations Act (NLRA) today, an employer can insist upon a secret ballot after 30% of workers indicate by card checks their interest in a union. The campaign that follows lets the employer air his views about the downsides of unionization before the vote takes place.

To be sure, the employer's free-speech rights are limited under the NLRA. He cannot threaten to move or shut down if workers vote for the union. Nor can he promise higher wages if they don't. But he can make predictions of what will happen if his firm is unionized, and he can point to the reversal of worker fortunes in other unionized firms.

The Supreme Court (unfortunately, in my view) has held that the peculiar labor-law environment justified these abridgements of ordinary speech rights. But it hardly follows that if the government can curtail speech rights, the EFCA can eliminate them. There is simply no legitimate government interest in promoting unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions' adversaries.

[St. Louis Conservative]

This is perhaps the most asinine that has come down the pike in many years. I actually feel better about the GOP's prospects for blocking it, though. Blanche Lincoln recently stated she may not support it. I'd be surprised if the other Democrat senator from Arkansas supported it either - Arkansas is, after all, the home of Wal-Mart, who has a strong vested interest in stopping this. There's also Ben Nelson, a moderate Dem from a right-to-work state. Montana, North Dakota, South Dakota, & North Carolina are all right-to-work states and they all have Democrat senators whose constituencies will be opposed to this. There's a chance that Specter could vote in favor (I have my doubts he will), but even if that happens, the Dems would have to hold EVERY member of their caucus. I'm doubtful that will happen.

[ken21]

they’ve wanted control of wal-mart for many years,

and of course, the right to work states.

[St. Louis Conservative]

I can’t imagine either Prior or Lincoln voting for card check. Arkansas is right-to-work and I can’t imagine any Arkansas politician crossing Wal-Mart.

[ken21]

it was president ronald reagan that stood up to the unions

and their influence diminished.

now, we face the up hill battle of preventing a re-entrenchment of the fdr-truman-lbj thugs.

truman came out of the kansas city mob.

[Dr.Zoidberg]

If this passes, I’m hoping the first few thousand union thugs who start leaning on those who refuse to be union pawns end up with two extra holes in their heads.

An entry and an exit hole.

I will never be part of a labor union and I won’t be intimidated.

[lewislynn]

The Employee Free Choice Act is Unconstitutional

What are you trying to do with that kind of talk, embolden them ?

[rmlew]

So what? The National Labor Relations Act is unConstitutional, but has been legalized tyranny for almost 3/4th of a century.

[Republic of Texas]

Virtually everything the Federal government does now is unConstitutional, and it’s going to get worse with Obama. This is a bug on the windshield of UnConstitutional.

[steel_resolve]

hopefully that won’t be necessary. RICO should suffice...

[Beeline]

The Democrats pushed home ownership artificially, look what
happened,
Now they want to artificially promote Union Houses and membership. Another artificial bubble.

[Dr.Zoidberg]

One can always hope, but I have no faith remaining in anything that involves the law.

[steel_resolve]

Then when the time comes, you, I and others will employ different means to get our point across.

[headstamp 2]

“There is simply no legitimate government interest in promoting unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions’ adversaries.”

Yes there is. It’s called the Democrat party. Currently the majority party of the Federal government.

[Spktyr]

Unions are specifically exempted from RICO.

[Iron Munro]

Constitution?
Surely you Jest.

[CharlesWayneCT]

Virginia is a right-to-work state, but I can imagine Warner and Webb voting for this thing.

[St. Louis Conservative]

I can’t see it. Maybe one, but not both. The business interests in Virginia are more powerful than the unions in Virginia.