The Fortification of Inequality: Constitutional Doctrine and the Political Economy

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Third, while much constitutional law relating to the distribution of economic and political power and the non-existence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were, in fact, hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments. As discussed in Part III, these descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of the importance of judicial appointments. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the judicial fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Doctrine that now often seems natural is by no means fixed. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy

The President\u27s Enforcement Power

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus reveals the need for institutional design reforms—namely more coordination across agencies and greater disclosure of enforcement policy. The seeds for such reforms can be found in several recent efforts that have yet to be made systematic. Concerns about politicization of law enforcement should not override the considerable benefits that would derive. Rather, by acknowledging the President’s role in, and responsibility for, enforcement, we can better ensure the structure and transparency that promote appropriate presidential influence

The President's Enforcement Power

Enforcement of law is at the core of the President’s constitutional duty to “take Care” that the laws are faithfully executed, and it is a primary mechanism for effecting national regulatory policy. Yet questions about how presidents oversee agency enforcement activity have received surprisingly little scholarly attention. This Article provides a positive account of the President’s role in administrative enforcement, explores why presidential enforcement has taken the shape it has, and examines the bounds of the President’s enforcement power. It demonstrates that presidential involvement in agency enforcement, though extensive, has been ad hoc, crisis-driven, and frequently opaque. The Article thus reveals the need for institutional design reforms—namely more coordination across agencies and greater disclosure of enforcement policy. The seeds for such reforms can be found in several recent efforts that have yet to be made systematic. Concerns about politicization of law enforcement should not override the considerable benefits that would derive. Rather, by acknowledging the President’s role in, and responsibility for, enforcement, we can better ensure the structure and transparency that promote appropriate presidential influence.http://deepblue.lib.umich.edu/bitstream/2027.42/109197/1/The Presidents Enforcement Power.pd

Peril and Possibility: Strikes, Rights, and Legal Change in the Era of Trump

Everyone in this audience is well aware of the problems plaguing reiterating. The wealthiest one percent of Americans takes home nearly a quarter of our national income and owns forty percent of the nation\u27s wealth

Social Bargaining in States and Cities: Toward a More Egalitarian and Democratic Workplace Law

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level – at least in a progressive direction – is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses in labor law, even where local politics would permit such gains. A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses in labor law, even where local politics would permit such gains

Social Bargaining in States and Cities: Toward a More Egalitarian and Democratic Workplace Law

A well-documented problem motivates this symposium: The National Labor Relations Act (NLRA) does not effectively protect workers’ rights to organize, bargain, and strike. Though unions once represented a third of American workers, today the vast majority of workers are non-union and employed “at will.” The decline of organization among workers is a key factor contributing to the rise of economic and political inequality in American society. Yet reforming labor law at the federal level—at least in a progressive direction—is currently impossible. Meanwhile, broad preemption doctrine means that states and localities are significantly limited in their ability to address the weaknesses in labor law, even where local politics would permit such gains

Union Rights for All: Towards Sectoral Bargaining in the United States

American labor unions have collapsed. Having once bargained for more than a third of American workers, unions now represent only about 6 percent of the private sector workforce. In the wake of new statutory and constitutional limitations, their presence in the public sector is shrinking as well. As unions have declined, the United States has lost a key equalizing institution in politics and the economy, INdeed, economic inequality is at its highest point since the Gilded Age, when unionization rates were similarly low. With the weakening of unions, the United States has also lost a key mechanism for protecting against employer domination and providing workers a voice on the job. Employment law, which protects employees on an individual basis irrespective of unionization, has not filled the void

Building Labor\u27s Constitution

This essay begins with a puzzle: scholars have built a robust set of constitutional claims about labor rights, claims with deep roots in the labor movement’s own past struggles and its own traditions of constitutional claim-making. Yet, workers’ movements today have made no use of these claims, Andrias reports. The reason, she suggests, has to do with the deep mutual hostility between workers’ movements and the courts. If past were prologue, workers could at least use such arguments outside the courts, but, she argues, “in our [contemporary] legal culture, constitutional arguments are primarily judicial arguments,” and have a way of ending up in court, where workers tend to lose as they have most of the time for more than a century. Thus, it makes sense for workers to avoid constitution talk. At the same time, Andrias argues, to lay the groundwork for any future constitution of workers’ rights – rights “to a union and to collective bargaining, to decent wages and benefits, to basic dignity and a measure of democracy at work” – we would need fundamental political changes that only organizing can bring about. She argues that campaigns such as the Fight for $15 and the Domestic Workers Alliance, working outside the confines of labor law as it is traditionally understood, may be laying the political groundwork for a future “anti-oligarchy Constitution.

The New Labor Law

Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the old regime, the potential for a new labor law is emerging. In this Article, I describe and defend the nascent regime, which embraces a form of social bargaining long thought unattainable in the United States. The new labor law rejects the old regime’s commitment to the employer-employee dyad and to a system of private ordering. Instead, it locates decisions about basic standards of employment at the sectoral level and positions unions as political actors empowered to advance the interests of workers generally. This new labor law, though nascent and uncertain, has the potential to salvage and secure one of labor law’s most fundamental commitments – to help achieve greater equality, both economic and political – in the context of the twenty-first century economy