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‘Card-Check’ Is The Latest Commerce Clause Battleground

For nearly half a century, federal lawyers have argued that it is both illegal and unconstitutional for states to infringe their citizens’ right to vote. The curious politics of our era may now prompt the feds to argue that it is unconstitutional for states to insist on their citizens’ right to vote.

Welcome to the latest front in the struggle over the U.S. Constitution’s Commerce Clause.

The federal power to "regulate Commerce [...] among the several States" is at the heart of the legal challenges to last year's health care overhaul, and particularly its mandate that individual consumers purchase health insurance or face a penalty. But, more broadly, the Commerce Clause has been at the center of legislation that has vastly expanded federal powers ever since the New Deal. More recently, it has often been the focus of conservatives' efforts to roll back Washington's authority.

Citizens of Utah, South Carolina, South Dakota and Arizona amended their state constitutions last year to provide that workers must be given a secret-ballot election to determine whether they will be represented by a union. This is a hot-button issue for the labor movement, which has tried unsuccessfully since President Obama took office to win the right to automatically represent workers once a majority of the potential bargaining unit has signed "card check" forms indicating a desire to be represented.

Businesses argue that card checks would subject workers to pressure from union organizers while denying management a chance to make a case, if it wishes, against unionization. Federal law already authorizes card-check organization, but with a big caveat: The employer has the final say over whether to recognize a union selected this way.

The National Labor Relations Board, which now has a labor-friendly majority due to Obama appointments, is threatening to challenge the four states' measures on grounds that they are unconstitutional. The exact part of the Constitution violated has not been spelled out, but it is safe to assume that congressional powers under the Commerce Clause are high on the list of possibilities.

But a constitutional challenge can cut in two directions. The states can argue that constitutionally-protected due process, for workers and employers alike, calls for secret ballots in union elections. Not long ago, this argument would have been quickly rejected, but the Supreme Court's increasingly conservative (proponents would say "historically correct") view of the Constitution makes this no longer a sure thing.

As a matter of fact, in correspondence with the NLRB’s chief lawyer, the states have already raised the due process argument, as well as the First Amendment’s guarantees of freedom of association, in defense of their new provisions.

Congress can clearly override the states’ new secret-ballot provisions if it enacts a federal law enforcing card-check union organizing drives. But this is exactly what the last Congress declined to do. The chances of such legislation passing the current House of Representatives, under Republican control, are close to nil. I don't see a violation of the U.S. Constitution when the state takes away an employee option that current federal law does not grant anyway.

Moreover, 22 states already have right-to-work laws. These laws prohibit unions and employers from making union membership mandatory for everyone who works at a unionized employer. If states have the power to prevent workers from being forced to join unions in the first place, they would seem to have the power to ensure that workers who are deciding whether to unionize are given the chance to make that decision in a private ballot, rather than in front of their peers and their bosses.

It strikes me that the NLRB stands to lose a lot more than it might gain by suing the four states for insisting on private union-organizing ballots. Not only might the courts side with the states, but we would all witness the spectacle of federal lawyers arguing that states cannot insist on their citizens’ right to vote.

In the government's long history of defending Americans' civil rights, such a lawsuit is not going to be remembered as federal lawyers' finest hour.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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