In 1918 the Supreme Court declared that child safety laws were unconstitutional.
Most Americans are employees, and these days they see and fear a rising infringement on employee rights coming from the ultra-rich.
The National Labor Relations Board (NLRB) is the agency in charge of protecting unions and their members. In place since Roosevelt’s New Deal, its constitutionality is now being challenged by the two richest men on the planet: Jeff Bezos and Elon Musk.
Amazon and SpaceX have faced NLRB pressure for alleged labor law violations. They are arguing that the agency is the one overstepping the law.
They say that the NLRB’s judges are improperly protected from removal because they can’t be fired by the president or can only be fired “for cause,” which typically involves misconduct.
Elon Musk alleges that the “constitutionally required degree of control is lacking”; his charge followed an accusation that he had unlawfully fired eight employees for writing a critical open letter.
Amazon also alleged that the NLRB’s structure “violates the separation of powers” because its judges are largely protected from presidential oversight and removal, “impeding the executive power” enshrined in Article II of the Constitution.
Other corporate giants facing union-busting complaints have joined the battle as well, including Trader Joe’s and Starbucks.
These corporations believe they will find a sympathetic audience before the conservative justices that occupy six of the Supreme Court’s nine seats.
They are also afraid of a resurgence of union support among Americans. The NLRB has made it possible for the unionization process to move faster and has sought to quickly reinstate workers who are illegally fired for organizing unions, rather than waiting years for litigation to play out.
The NLRB arose in an era of anti-worker legislation that hit from the 1890s to the 1930s. During this “Lochner era,” corporations argued the same thing they are arguing now: that laws protecting workers’ rights, including the right to organize unions or be paid a minimum wage, violated their “freedom to contract” and exceeded Congress’ power under the Constitution.
Back then, they were largely supported by the Supreme Court.
The Court struck down laws related to minimum wages, prohibition of child labor, and strikes. Labor leaders could be jailed.
Corporations grew wealthier and more powerful.
Wealth inequality in the U.S. over time. New information shows that the increase in inequality since the 1970s has been even much more dramatic than this diagrams suggests.
Only after industrial trade unionism, working-class power, and socialism became the rallying cry for millions of workers, did the economic distress wrought by the Great Depression make change possible. The New Deal convinced the Supreme Court that it needed to change.
In 1936 Washington state passed a law saying that women in industry should get a minimum wage of $14.50. The West Coast Hotel Company paid its employee Elsie Parrish less than this, and she took them to court.
Elsie Parrish was a chambermaid in 1935: a 30-something, twice-married, once-divorced, mother and grandmother who made her living by cleaning rooms in an upscale hotel in Wenatchee, Washington. She lost her job and did not receive back wages in line with the state’s minimum-wage-for-women law. Bad mistake by the hotel. She sued. She later said: ‘I had to do it. What they did wasn’t right.’
Back in 1923 the Court had struck down a minimum wage law for working women, so Parrish was being very courageous.
Two years later, in a 5-to-4 decision, the Court held in 1936 that the establishment of minimum wages for women was constitutional.
The majority ruled that the state may use its power to restrict the employer’s “individual freedom to contract”.
The decision is regarded as having ended the Lochner era where the Court tended to invalidate legislation aimed at regulating business.
One up for Elsie Parrish!
During the New Deal, the justices ruled that Congress has the power under the Constitution to pass minimum labor standards. It could also create agencies, such as the NLRB, to protect workers.
In setting this policy, the attitude of the President was paramount. Roosevelt of course was a labor champion, and his stance changed the opinion of one of the Supreme Court justices to lean towards labor.
The question now is: will today’s Supreme Court continue to back labor, or will it support business?
At risk is that 88-year history of progressive legislation.
Just to review the case: the rich contend that the labor board violates the separation of powers of the judicial, legislative, and executive branches because it mixes executive and judicial functions.
They also argue that the board is unconstitutional because presidents cannot fire the NLRB’s members or administrative law judges whenever they want.
And opponents of the NLRB claim that the use of administrative law judges violates the right to a jury trial.
Kate Andrias, law professor at Yale, argues that the Supreme Court has long permitted all these features, not only for the NLRB, but for other government agencies as well. She says:
“No provision of the Constitution prohibits Congress from designing government agencies in this way. And Congress believed that these design choices would help the agency function well… Having each violation of law litigated before a federal jury, rather than administrative law judges deciding cases, could take a lot longer to resolve cases.”
She warns that if the corporations are able to roll back the progressive era, the NRLB will no longer be able to function.
It is already very difficult to form unions, but if the corporations win, there will no longer be an agency in place to safeguard workers’ rights and to negotiate fair contracts.
“If the NLRB is found to violate the Constitution, other government agencies could be at risk as well, including the Securities and Exchange Commission (SEC), the Federal Election Commission (FEC), and the Federal Trade Commission (FTC). In my view, that would endanger investors, voters and consumers—all Americans.”
The Supreme Court is today more pro-business than it has been in a century. They have already shown that they are willing to overrule long-standing labor precedents that resulted in reduced union funding and restricted access to unions. They have overturned a Biden regulation designed to protect the environment and have rejected its initial student loan forgiveness program.
And of course their treatment of Roe shows that they have no trouble with the idea of overturning laws that were supposed to be cast in iron.
If they do this for the billionaires, they will be repaying their wealthy benefactors who have bought their vacations for them and paid for trips abroad.
Not that I’m implying that they could be swayed by wealth.
Which brings us in a circular way to a question that was not asked at the start of this article:
Why are the billionaires doing this?
Because they can easily increase their wealth by working the government.
Once upon a time (the 1950’s), the top marginal tax rate on the wealthy was above 90 percent.
Today, the top 400 wealthiest families pay 8.2%.
The 25 richest pay 3.4%.
Without their share of the tax revenue, government debt has grown mainly because of Republican tax cuts that have mostly benefited the rich.
This confiscation of wealth hits everyone. The rate of absolute income mobility—that is, the percentage of children who earn more than their parents—has been declining steadily since the Second World War.
That happened with the decline of unions.
Today unions are good only if you mean ‘unions of companies’. A handful of companies now control the food system of the United States, for example. Four companies now control about 52 percent of the American market for rice, about 61 percent of the market for fresh bread, and about 79 percent of the market for pasta. When four companies gain a combined market share that is greater than 40 percent, an oligopoly has formed.
The wealth of the top 1% just hit $44-billion – the highest it has ever been. Not coincidently, homelessness also hit a record high.
The wealthy get special services for free. Every time Elon Musk launches a spacecraft, air traffic controllers on the ground take special care to divert planes and then re-open the space after the launch. The taxpayer provides this service for Elon, for nothing.
The taxes that Bezos is not paying, are the foundation for the roads his vans drive on to deliver his products.
Same with Trader Joe’s and Starbucks.
Their owners are the wealthiest they have ever been.
Yet now, they are working to subvert the power of unions to get a fair deal.
It’s not like they need the money.
The world’s five richest men have seen their collective wealth more than double, while five billion people across the globe have lost ground.
If the workers got higher pay and more money, the economy would boom and the rich would frankly get even wealthier.
But they have a visceral problem with the thought that workers might gain a bit of independence.
Not every large company is like that.
Indeed, even Starbucks recently agreed to begin negotiating with its workers after years of illegally—according to the NLRB—refusing to bargain with them.
Volkswagen in North Carolina did not dispute the formation of a union in its plant there.
The offending companies sometimes push back that they can’t raise wages because that would trigger inflation. Nonsense. Inflation is cause today by corporate profits.
Some legislatures are trying to go the other way, reducing the power of workers. A bill sponsored by Kentucky Republican Rep. Phillip Pratt, would eliminate the requirement that employers provide lunch breaks and rest breaks. Kentucky is also backing measures to relax child safety laws.
But no matter how you look at it, wages need to go up. Since Reagan’s America, productivity has soared while wages have remained flat. All that newly-generated wealth is going out of the pockets of families and into the assets of the rich.
Profit, in essence, is just labor that has not been paid out.
You have to ask yourself at some point: why are they trying to take money away from their workers?
The rich have so much that they will never be able to spend it. Their wealth is meaningless.
But here they are, in front of the Supreme Court, arguing that the agency responsible for fair play for workers is unconstitutional.
The arrogance of it is breathtaking.
Fortunately, workers are organizing in greater numbers than they have in decades.
History teaches that when there is sufficient popular support for unions and workers’ rights, and sufficient mobilization among workers, the Supreme Court sometimes backs off and corporations give up their fight against workers’ rights.
It is certain that if the Supreme Court makes another “Roe” plunder against the wishes of the American people, there will be a reckoning that will echo the days of 1936 and Elsie Parrish, when strikes and protests achieved major gains for American workers.
People in those unions died for what we have today: a regulated work-place, better wages, appeals for unjust dismissal…and the National Labor Relations Board.
Let’s see where today’s Supreme Court takes us.
“If any man tells you he loves America, yet hates labor, he is a liar. If any man tells you he trusts America, yet fears labor, he is a fool.”
-- Abraham Lincoln
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"Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That's how it goes
Everybody knows
Everybody knows that the boat is leaking
Everybody knows that the captain lied
Everybody got this broken feeling
Like their father or their dog just died
Everybody talking to their pockets
Everybody wants a box of chocolates
And a long-stem rose
Everybody knows" -- Leonard Cohen
It seems The NY Times agrees...
"In a guest essay published on Friday, Zucman and I teamed up again. This time, our focus is on individual billionaires, who are just as clever as large companies when it comes to exploiting tax loopholes. The degree to which the superrich have minimized their tax burden is shocking. In the 1960s, the 400 richest Americans paid about half their income in taxes. By 2018, their effective tax rate had dropped to 23 percent, which is lower than the rate that working-class Americans paid."
https://www.nytimes.com/interactive/2024/05/03/opinion/global-billionaires-tax.html?searchResultPosition=1