Posts tagged Loper Bright Enterprises v. Raimondo
Competitive Enterprise Institute Opinion: Time to End the ESG Shakedown
January 21, 2025 // Any agency that is not charged by Congress with pursuing those specific goals should not have staffers assigned to those goals. The Environmental Protection Agency is the place for climate policy; the Equal Employment Opportunity Commission is the place for workplace discrimination claims. The executive branch does not need an infinite regress of staff, in each agency, assigned to advance every progressive policy priority under the sun. New leaders at the independent agencies, such as the Securities and Exchange Commission and the Federal Trade Commission, will receive less direct instruction from the new president. Still, they will have broad discretion to set the agenda at their respective agencies for enforcement, future rulemakings, and repeals. SEC chairman-designate Paul Atkins, for example, will have the ability to fully reverse the pro-ESG mission creep seen over the last four years. He can, instead, focus the SEC on such charmingly old-fashioned goals as encouraging capital formation and new investment opportunities rather than micromanaging the board decisions of every public company in America.
Is It Really About Employee Voices? The National Labor Relations Board Continues its Union-Friendly Trend
August 7, 2024 // The new regulations also contain a revision that will affect construction companies. Under the NLRA, an employer cannot recognize and bargain with a union lest the union has demonstrated that it represents a majority of the employees (through cards or an election, as noted above). Section 8(f) of the NLRA provides a limited exception to this rule, and it applies solely to the construction industry. Under Section 8(f), a construction industry employer can enter into a "pre-hire" agreement with a union and negotiate employment terms regardless of whether the employees support the union. Prior to 2020, the Board allowed an employer and union to convert an "8(f) agreement" into a normal collective bargaining agreement simply by stating that the union had demonstrated majority support to the employer. That language was sufficient to block a decertification petition or petition from a rival union during the so-called "contract bar" period (the term of the labor agreement, up to three years). No evidence would be examined to attack the contract language – this provision was enough.
Texas Judge Enjoins NLRB From Proceeding Against SpaceX, Casting Further Doubt on NLRB’s Constitutionality
July 31, 2024 // If the lawsuits ultimately succeed and the NLRB is dismantled in whole or in part, we may see a dramatic transformation of the way union organizing, elections, and worker and union disputes are decided under the National Labor Relations Act (NLRA). We will continue to monitor developments in these cases, as well as the expected wave of challenges to the NLRB’s rules and positions.
Republican challenge to ESG investing rule could showcase risk to US agency powers
July 10, 2024 // The high court did just that in a June ruling in Loper Bright Enterprises v. Raimondo, saying judges instead should exercise their independent judgment in evaluating agency rules. That decision is expected to have a widespread impact on the government's ability to adopt new rules such as environmental, securities and labor regulations, and is part of a broader effort by conservative groups to rein in the powers of what they call "the administrative state."
Commentary: Is the NLRB Unconstitutional? The Courts May Finally Decide.
December 6, 2023 // While many agencies act politically, the Board is a special problem. Unlike other agencies, the Board makes almost all its decisions not through rulemaking, but through one-off panel decisions. That means it can change policy much faster. The “law” can swing wildly from case to case. In fact, according to one study, the Board during the Obama administration reversed a group of decisions that had been on the books for more than a collective 4,500 years. The Board’s constitutional flaws are also different from those of other agencies. For example, in a recent case involving the SEC, the Fifth Circuit Court of Appeals held that the agency’s structure violated the Seventh Amendment. That was because the SEC can impose civil fines—the kind of claims that must be tried to a jury. The Board has no authority to impose civil fines, so it doesn’t have the same Seventh Amendment problem. Its problem instead comes instead from its unchecked power to decide cases. It controls the outcome in disputes affecting a range of private rights. And those disputes, according to Article III of the Constitution, should be decided only by real judges.