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The Corner

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The Employee Free Choice Act Is Unconstitutional



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Prof. Richard Epstein argues in today’s Wall Street Journal that the Employee Free Choice Act (“EFCA”) is unconstitutional for two reasons. Firstly, its card check provision violates employers’ First Amendment rights by effectively depriving them of the opportunity to convey to their respective workforces counterarguments on the merits of unionization. Secondly, its mandatory arbitration provision could result in takings in violation of the Fifth Amendment by granting government-appointed arbitrators the unreviewable power, e.g., imposing labor costs on employers.   The takings argument probably is the stronger of the two; it’s unclear that EFCA goes appreciably further than other restrictions on speech upheld by the Supreme Court in the context of the National Labor Relations Act. But there’s a third constitutional infirmity that Prof. Epstein leaves unaddressed (more precisely, it’s a corollary to Epstein’s second argument): EFCA’s mandatory arbitration provisions arguably constitute an unlawful delegation of legislative power under Article I, Section 1.   EFCA grants to arbitrators the power to write all of the terms of collective bargaining agreements — wages, hours, benefits, subcontracting,etc – but fails to provide any standards or guidelines on how arbitrators are supposed to exercise that power. EFCA merely states that arbitrators will discharge their duties in accordance with rules that the Federal Mediation and Conciliation Service may prescribe. Similarly vague, broad grants of authority have been held to be a violation of the non-delegation clause in a number of New Deal era Supreme Court cases .   No doubt EFCA proponents are aware of these potential constitutional challenges and will remedy them before the bill is reintroduced. Doing so could result in, um, interesting changes to the mandatory arbitration provision.



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