When at Times the Mob Is Swayed

by Burt Neuborne

  As usual, Congress has slept through the change. The statutory framework and network of labor regulations dating from the 1930s has remained relatively untouched as the economy evolved from an industrial base with employer-employee collective bargaining at its core to a service economy with millions of low-paid workers forced to operate in increasing isolation and vulnerability as independent contractors. As with so many federalism issues, the best solution would be a careful congressional updating of the 1930s-era labor laws to provide basic protections to workers trapped in the gig economy. Once again, though, don’t hold your breath, especially in the Time of Trump.

  If progress is to occur in ameliorating the rigors of the gig economy in the foreseeable future, it will be at the state and local levels. That makes Seattle’s effort to step into the congressional void by providing drivers for Uber and Lyft with state- and local-law-based collective bargaining rights an important test of federalism. Unlike efforts to undermine federal rules in settings like offshore drilling or net neutrality—raising issues of “conflict preemption”—Seattle is seeking to reinforce a federal statute by extending its reach. Can progressive states fill voids in current federal regulatory schemes?

  For years, large corporations have argued successfully that one consequence of federalism is that when Congress acts, it freezes the ability of states to regulate in the entire field, even when the state regulation seeks to reinforce or strengthen Congress’s action. It’s called “field preemption.” Under field preemption, a federal statute or regulation imposes ceilings on the states as well as floors. Advocates of field preemption argue that Congress intended to “occupy the field” with its statute. Ironically, progressives shot themselves in the foot by inventing field preemption to protect federal labor law from erosion at the hands of state officials hostile to collective bargaining.

  The question is whether Congress’s decision in the 1930s to grant collective bargaining rights to employees “occupies the field,” leaving no room for Seattle, acting as a proxy for the state of Washington, to supplement the 1930s legislation by providing collective bargaining rights to Uber and Lyft drivers, even though technically they may be independent contractors, not employees. The problem, of course, is that the line between employee and independent contractor is invisible to the naked eye. It is supposed to turn on the degree of supervision exercised by the employer over the worker, but that’s a concept subject to infinite manipulation. It’s even possible that Uber and Lyft drivers are, in fact, employees under federal law—but don’t expect a Republican-dominated National Labor Relations Board to expand the envelope of protection for workers. It’s just another example of how executive agencies use vague statutes to make the law, not merely apply it.

  It would, I believe, be inconsistent with the Founders’ view of genuinely sovereign states to insist that an eighty-year-old congressional statute designed for an industrial economy prevents states from stepping in to provide interim relief to workers in the gig economy until Congress gets its act together and promulgates rules for the modern era. If states can’t step into the regulatory void, millions of workers will be trapped in limbo, falling outside the congressional safety net designed for another time, but denied access to modern safety nets designed by state majorities.

  Just don’t bet on a Republican Supreme Court enabling states and localities to act aggressively to protect worker equality. The Court is far more likely to use field preemption to reinforce employer autonomy. If progressives want to unleash states to protect workers, they will have to win back the right at the polls by turning Congress and the presidency blue.

  The Seattle controversy also demonstrates “conflict preemption” in action. When Congress acts within its legitimate powers, its word, under the supremacy clause, is the supreme law of the land, overriding any conflicting state rules. The effort by Seattle to grant collective bargaining rights to Uber and Lyft drivers doesn’t run afoul of conflict preemption with the National Labor Relations Act because it seeks to reinforce and expand, not frustrate, Congress’s statute. However, it may run into conflict preemption with an even older congressional statute, the Sherman Antitrust Act, dating from 1890, barring “conspiracies in restraint of trade.”

  Allowing workers to bargain collectively, so the argument goes, permits them to form a cartel on wages, just like a corporate cartel on prices, and both are in restraint of free trade. If that sounds crazy to you—as it does to me—consider that when Legal Aid lawyers in the District of Columbia walked off the job, demanding better pay, smaller caseloads, and more resources to defend their poor clients, the DC Circuit found them guilty of engaging in a conspiracy in restraint of trade. There are, however, two answers to an effort to label Seattle’s grant of power to engage in collective bargaining over wages as an antitrust violation. First, the Supreme Court has held, correctly, that states may empower collective action—even cartels—by weak players in the economy without violating the antitrust laws as long as the state authorizes the cartel and keeps a careful eye on its operation. It’s called the “state action” exemption from the antitrust laws. The issue in the Seattle controversy is whether Washington’s power to create closely regulated pockets of collective action can be delegated to local government units like Seattle.

  Second, as a pure matter of economics, authorizing workers to bargain collectively with their employers on issues such as wages and hours has nothing whatever to do with the evils of corporate monopoly that led to the enactment of the Sherman Act. If anything, rules guarantying collective bargaining on wages and conditions of employment are designed to allow—not frustrate—genuine bargaining between equals. That’s why Congress, in enacting the National Labor Relations Act, didn’t blink in guaranteeing employees the right to engage in collective bargaining with their employers. The same thought process should allow Seattle to expand collective bargaining rights to independent contractors as well.

  Most Democratic judges would do it in a minute. Most Republican judges will find a way to protect the employer. It’s just another example of how important it is to participate in the process of deferred democracy by which our “apolitical” federal judges are selected.

  REDISCOVERING STATE CONSTITUTIONS

  After appearing to be ready—finally—to move against massive partisan gerrymandering, five Republican Supreme Court justices ducked the issue once again in June 2018, finding technical ways to get rid of the cases without ruling on the merits. While I remain cautiously optimistic that the justices will eventually recognize that excessive partisan gerrymandering is strangling American democracy, it’s possible that the Supreme Court may not get around to doing anything about it as long as the Court remains in Republican hands.

  That means we cannot ignore the potential of federalism as a source of electoral reform. If the Supreme Court cannot find an autonomy-based right to vote in a contested election, or an equality-based right to be free from excessive partisan gerrymandering in the federal Constitution, we must be prepared to turn to state courts—and state constitutions—to press for reform of democracy. The Pennsylvania Supreme Court has recently invalidated the state’s massive partisan gerrymander under the Pennsylvania constitution. Its decision flipped four congressional seats. Since the decision was based solely on state law, the United States Supreme Court can’t get its hands on it—even if Trump manages to pack the Supreme Court.

  Progressives should be readying a barrage of state court challenges designed to remove unnecessary costs and increase the perceived value of voting. That’s just what Common Cause has done in North Carolina, taking a challenge to a hyper-partisan gerrymander of the state’s congressional districts that was languishing in the federal courts because, thus far, the Supreme Court refuses to decide it and shifting it into a North Carolina state court system headed by a state supreme court with a 5–2 Democratic majority.

  Once upon a time, federal courts were the preferred forum if you wanted egalitarian reform. But that was when they were
blue. Now state judges may be the constitutional forum of choice for protecting the weak. Every state is a potential battleground, especially the numerous states that elect their judges.

  During my years of active practice, I tried to avoid elected state judiciaries in constitutional cases. After all, many constitutional cases are often efforts to get a second judicial opinion on something that was lost in the legislature. I found that elected judges tended to mirror the political beliefs of the very elected legislators I was asking them to overrule. So over the years I put my constitutional eggs in the federal basket. But not necessarily when it comes to partisan gerrymandering, where the people are way ahead of the judges in realizing that partisan gerrymandering is killing American democracy. It may well be that elected state judges are the best way of linking litigation seeking reform of American democracy to the widely held belief by the mass of the people that our existing law of democracy is in shambles.

  RETHINKING THE INCORPORATION DOCTRINE

  Finally, it may be time to rethink one of the sacred cows of progressive legal thought—an intense commitment to applying the provisions of the Bill of Rights to limit the power of the states as well as the federal government so that both operate under identical federal constitutional rules. Remember, we have two Bills of Rights. The first Bill of Rights, constituting the first ten amendments, was adopted in 1791. What is frequently called the second Bill of Rights, comprising the Thirteenth, Fourteenth, and Fifteenth Amendments, was adopted in the five years following the end of the Civil War.

  The autonomy-protective aspects of the first Bill of Rights, including the rights to free speech, religious freedom, the right to bear arms, the right to be free from unreasonable searches and seizures, the privilege against self-incrimination, the right to due process of law, and freedom from cruel and unusual punishments, were initially aimed solely at the federal government. The post–Civil War equality-driven second Bill of Rights, comprising the Thirteenth Amendment’s abolition of slavery and peonage, the Fourteenth Amendment’s due process and equal protection clauses, and the Fifteenth Amendment’s ban on racial discrimination in voting, was aimed at the states.

  Until 1925, to the extent that states were bound by federal constitutional protections at all, the Republican Supreme Court usually couched the protections as “substantive due process” guarantees provided by the due process clause of the Fourteenth Amendment. History taught that “substantive due process” was hopelessly vague and subjective. Republican judges used it as a club to invalidate minimum-wage, maximum-hours, and child-labor laws. Justices Oliver Wendell Holmes Jr. and Louis Brandeis deeply mistrusted the concept of substantive due process because it licensed Republican judges to turn their absolute commitment to the free market into constitutional doctrine. During the 1920s, the two justices sought a formula that would permit vigorous protection of social and political rights but also would encourage substantial regulation of the economy in order to protect the weak. They found it in 1925 by arguing that the due process clause of the Fourteenth Amendment was not an open-ended invitation to strike down anything the justices felt was deeply unfair. Rather, it was a verbal bridge over which fundamental textual provisions of the first Bill of Rights could travel to bind both the state and federal governments with the same text.

  Holmes and Brandeis began in Gitlow v. New York (1925) by incorporating First Amendment free speech protection into the Fourteenth Amendment’s due process clause so that it would bind New York State as well as the United States—a brilliant exercise in word magic. The Supreme Court followed up over the years by marching religious freedom, protection against unreasonable searches and seizures, the right against self-incrimination, the rights to counsel and to a fair jury in a criminal case, and the ban on cruel and unusual punishments over the Fourteenth Amendment’s due process bridge to bind the states.

  Most recently, five Republican justices marched the Second Amendment right to bear arms across the bridge over the objection of four Democratic justices who argued that it wasn’t fundamental enough to be part of due process of law. Progressive lawyers like me, seeking to limit the power of state majorities hostile to racial minorities and unfriendly to political dissenters and religious iconoclasts, have long applauded the parade of rights across the bridge—that is, until the right being incorporated into the due process clause was the Second Amendment right to bear arms. As the four Democratic justices noted in their dissent, reflex incorporation of the entire Bill of Rights into the due process clause of the Fourteenth Amendment has real federalism costs. It operates as a legal straitjacket that requires the entire nation—with all its diversity—to march to a single set of constitutional rules.

  When fundamental issues such as free speech, equality, and religious freedom are at stake, I believe that the centrality of those rights to a functioning democratic society calls for uniform, robust rules throughout the United States. But many constitutional guarantees in the first Bill of Rights, including jury trials in civil cases, grand jury indictment, Fourth Amendment search and seizure rules as they govern automobile stops, and the right to bear arms, can take many forms without necessarily jeopardizing a functioning democracy. Perhaps they should not be the subject of incorporation word magic.

  Respect for regional diversity may call for one set of gun ownership rules in Wyoming and Montana and another in inner-city Chicago, and one set of drunk-driving roadblock rules in New York City but another in rural Georgia. Back in the 1950s, Justice John Marshall Harlan II applauded the incorporation doctrine but argued that room for regional diversity should be built into it for certain incorporated rights. Justice Frankfurter agreed. Maybe it’s time to give Harlan’s views more thought.

  Trump is dangerous, especially to the vulnerable. His irresponsible behavior has already launched so many dangerous spells appealing to the worst in us that we may never get the genies of racism, xenophobia, and religious bigotry back into the bottle. There is real hope, though, that the Supreme Court can contain the worst of Trump’s excesses by remaining true to both red and blue precedents embedded in the purple Constitution. But even there, the capacity for slippage and deference to authoritarian governance is ever-present, especially if Trump succeeds in repopulating the Court as the current elderly justices leave the bench.

  Even if the Court’s membership remains stable, for the foreseeable future we will be living under the red Constitution, where close cases will be decided in favor of autonomy at the expense of equality. If you care about what happens to folks at the bottom—as well as maintaining the current level of constitutional protection for the rest of us—your only sure path of resistance is the ballot.

  Let go of the belief that courts and lawyers can provide the vulnerable with bulletproof, nonpolitical legal protection. Don’t give up on courts and lawyers, but, if the weak are to be protected, we’ll probably have to do it ourselves through the ballot box—there is no other way.

  EPILOGUE

  Night Sweats—What If It All Comes Apart?

  What if I’m wrong? What if the three constitutional pillars—separation of powers, federalism, and a decent balance between autonomy and equality—don’t hold? What if a steady stream of lies, half-truths, and appeals to racism, xenophobia, and fear-mongering persuade enough Americans to follow Trump over an authoritarian cliff? What if a craven Republican Senate and a Supreme Court besotted with deference cease to provide a check on Trump’s worst instincts? Pick your nightmare scenario.

  Here are two of mine:

  Trump wins the 2020 presidential and congressional elections. Justices Ruth Bader Ginsburg and Stephen Breyer leave the Supreme Court in 2021. Trump nominates fixer-lawyer replacements in the mold of Rudy Giuliani. The Republican Senate rolls over and confirms them. Justices Thomas and Alito concur with three of Trump’s nominees in deferring to the president in what they characterize as a time of national crisis. Stare decisis is trashed—or manipulated—in favor of a populist, strongman’s Constitution that pro
vides President Trump with implied emergency powers to make America great again. The forty-fifth president, invoking Abraham Lincoln, invokes martial law, suspends the writ of habeas corpus, rules by executive order, silences “fake news” outlets, preventively detains dangerous subversives, and declares an end to the era of “political correctness” by rescinding all executive regulations enforcing the Civil Rights Acts and instructing the attorney general to cease enforcing the statutes.

  Worse—

  Trump loses the November 2020 presidential election but cries foul, claiming that the balloting was rigged by the participation of millions of fraudulent voters, many of whom are allegedly undocumented aliens or simply fictitious. Two days after the election results are announced, the president directs Attorney General Giuliani to investigate charges of widespread voter fraud. Pending the results of the investigation, Trump declares martial law; detains the apparent electoral winner, a bewildered Joe Biden; refuses to permit the Electoral College to meet; and postpones the inauguration of a new president until the will of the true electorate can be accurately determined. Pending a deferred inauguration at the close of the investigation, the president suspends the writ of habeas corpus and rules by executive order. He rounds up the usual suspects.

  (I’ve left a space here for your own personal anxiety attack. Feel free to write it in by hand.)

  What extralegal options would be open for resistance to such Trumpist putsches clothed in legalisms and backed by a Supreme Court cowed into deference? What if Trump, citing Andrew Jackson, just ignores the Supreme Court?

  At this point, of course, I am far beyond my expertise, such as it is. When legal institutions run out, I have little to offer but faith.