At the Blog
On Tuesday, Todd Phillips and Daniel Walters argued that, in the wake of West Virginia v. EPA, agencies must refuse to clip their own wings. By embracing the so-called Major Questions Doctrine, the Court has adopted an approach that will require extensive litigation to block agency rules. Yet the Court itself lacks the capacity to handle this caseload, leaving the fate of the administrative state in the hands of lower courts. As they write, “The numbers favor the administrative state in the upcoming battle. Only a fraction of each court’s dockets comprises challenges to agency action. Yet the administrative state issues several thousand rules every year…. The math is simple: By being aggressive, agencies maximize their chances to make positive impacts on the public and avoid the worst impacts of the MQD.”
On Wednesday, Amanda Shanor revived our symposium on The Anti-Oligarchy Constitution, connecting Dobbs to Fishkin and Forbath’s historical inquiry. As she writes, “Dobbs exemplifies the way that today, as in so many earlier points in American history, powerful forces can limit the full liberty and equality of large swaths of people. It ends a half century of rights that were hard fought by many stretching back to the abolition and women’s suffrage movements…. What I wish [Fishkin and Forbath] had included is a deeper look at the moments in which oligarchic, settler colonial, white power, patriarchal, authoritarian, or other such forces prevailed. Why did these forces succeed? How did they organize our economy, our politics, our norms, and our ideas? To more fully understand the arc of the law, and recognize our present possibilities, we must consider not just Reconstruction and its anti-oligarchic goals, for example, but also the means of retrenchment and the rise and violent dominance of the KKK in the early 1900s (not to mention chattel slavery before that).”
And on Thursday, Jennifer Klein concluded our symposium on The Anti-Oligarchy Constitution by discussing what it would take to build worker and union power in the 21st century economy. Looking back on what many consider the golden age of labor, she writes, “collective bargaining as implemented in the U.S. during the second half of the 20th century fundamentally did not challenge corporate concentration of economic or political power. For those workers and families under the umbrella of collective bargaining, the union contract did bring rising income, greater consumption, access to health care and retirement, days off—that is, something closer to ‘security.’ Overall, however, American-style collective bargaining was a holding pattern. It froze in place the modicum of power labor had gained, without ever leveling the playing field. After the mid-1950s, collective bargaining for a single contract or with a single firm had little effect on the structure of work; control of technology; company siting, location, or closure; community displacement and its accompanying issues of land, space, and water. It was a holding action until corporate elites devised sufficient strategies—legal, geographical, cultural, political, and structural—to get out from under their hold. It some cases that took only a generation, when companies relocated South and West. The massive, open and successful assault against unionism took about two generations.”
In LPE Land
Mark your calendars: On Tuesday, July 19, we’ll be bringing together leading scholars, advocacy groups, and government officials in a virtual discussion: Resourcing a New Paradigm: The Future of Antimonopoly Research. Zoom Registration is Required, so smash that registration button.
Speaking of Antimonopoly reform, it’s not just for the Federal Government. The Democracy Policy Network has recently released a state level antimonopoly reform guide.
Over at OnLabor, a look at at what West Virginia v. EPA might mean for labor agencies like the NLRB and DOL.