Denis Drew

  • commented on Labs of Democracy: How the Right is Limiting Progressive Policies in Cities 2017-10-11 17:02:36 -0400

    The restocking of American labor union density in 39 words:
    If a state or local legislature passes a law that makes exercising freedom of association (e.g., organizing a labor union) possible where it would otherwise not be possible, then, Congressional preemption of labor law falls to the First Amendment.

    Federal interference (preemption) with state legislation can pop up in the least likely places (and least practical).


    Florida wanted 140 mph resistant cranes — Congress thought 93 mph okay, years ago — judiciary thought no lives endangered (off street; none lost to previous storms); probable property damage to cranes and structures not enough to let Florida do its own thinking. No competing value somewhere else in the Constitution could save Florida from judges judging federal preemption.

    Not so in every area.

    A doctor on KevinMD blog griped that anti-trust laws bar doctors from combining to bargain fees with hospitals (unless employed there). I opined (no expert on the specifics) that if doctors combined to bargain with a giant like Blue Cross, then, overall market power would be sufficiently balanced — for the First Amendment to assert itself and protect doctors’ combination — disallowing not a matter of legislative choice. (I got the general idea right anyway.)

    For decades now, judicial interpretation has walled out state labor legislation under federal preemption until it precludes anything the NLRA even so much as arguably protects or prohibits (Garmon); all arguments resolved solely by the NLRB — also almost anything that fits under the definition of the free play of economic forces affecting collective bargaining (Machinists), IOW almost anything not fitting under the definition of protected or prohibited.

    Ironically, as decades of judicially discovered barriers to state intervention piled up, the number of union workers left under federal rules slid endlessly down.

    Decades during which the initial intent of Congress to “encourage the practice and procedure of collective bargaining” — was been lost to growing federal ineffectiveness and state law freeze out.

    6% labor union density in private business (the 6% able to hang on by their own natural advantages; no help from Congress) equates to 20/10 blood pressure — no difficulty diagnostically. And it starves every other healthy democratic process.

    For an all day read on uninvited judicial construction activity click below (97 page PDF, very readable, half is notes and if you only want to check out Garmon and Machinists you can do pp. 70-90).

    Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy by Henry H. Drummonds

    Late dean of the Washington press corps, David Broder, told a novice reporter that when he came to D.C. fifty years earlier, all the lobbyists were labor. I tell doctors that no matter what health system we originate or borrow it won’t halt the financialization and crapification of US medicine — unless we build a countervailing force, unless we restore healthy union density (for the whole country, not just doctors).

    How to get (back) there in 30 words:
    Constitutionally guaranteed freedom of association precludes Congress from disallowing state legislative protection of labor organizing for collective bargaining which legislation is a necessary condition for the exercise of that freedom.


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