The long period of labor peace to which Americans are so accustomed is the result of a rare phenomenon: smart compromise in Congress. But the balance that Congress brought about in the mid-1930s was threatened by the Department of Labor (DOL). Unsatisfied with Congress' solutions, DOL has attempted to dramatically rewrite labor law through a recently issued rule that would expand many workplace protections well beyond limits set by Congress. However, the attempt was quickly halted by a federal judge in Georgia in Georgia Fruit and Vegetable Growers Association (GFVGA) v. DOL.
The history of labor unrest in the United States is complicated and occasionally violent. While labor strife in the United States never came close to matching the turmoil in other countries, it was marked by occasional bloodshed in the late 19th and early 20th centuries. Clashes such as the Railroad Riots (1877) and the Battle of Homestead (1892) resulted in Pittsburgh becoming a war zone and the bodies of strikers and Pinkertons dying on American streets. These horrific outbreaks of violence continued well into the 1930s.
Today, labor violence is largely unheard of, largely due to congressional resolutions that have managed to suppress labor unrest. Much of what we see in the American workplace dates back to the Wagner Act of 1935. He gave us the National Labor Relations Board, collective bargaining and secret ballots, and laid the foundation for unfair labor practices. The Wagner Act – in its various iterations – has produced “the most peaceful labor market in living memory” – a fitting tribute to its 89-year legacy.
Of course, it took a lot of legislative give and take to achieve this successful and lasting legislation. One such compromise is found at the outset, where it specifically excludes farmworkers from the definition of a covered “employee.” But DOL recently attempted to redefine the term on its own, thereby expanding the scope of the law.
Through a rule entitled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” DOL extended many of the protections of the Wagner Act to migrant agricultural workers entering the country under the H-2A program . The rule granted broad rights, including the right to self-organize, engage in collective and concerted labor activities, boycott, and picket. These are many of the same protections that are established by statute—not regulation—in the Wagner Act. Nevertheless, the law excludes farm workers from its definition of worker, and H-2A workers are farm workers. Additionally, the rule primarily targeted the H-2A program and sought to extend greater protections to foreign workers than their American counterparts.
No elected official has ever voted for this change. Had they done so, American voters would have communicated their likely disapproval to their elected officials and held them accountable at the ballot box. However, the entire process of representative government did not take place here precisely because it was a rule and not a law.
But shortly before the rule took effect, a district court in the Southern District of Georgia ordered its enforcement. The court found that DOL had greatly exceeded its constitutional authority because the rule applied to farmworkers and all farmworkers are excluded under the Wagner Act. The rule therefore constituted an attempt to “unconstitutionally legislate” by giving H-2A workers a right not recognized by Congress.
This federal court ruling is an example of how dramatically the administrative law landscape has changed following the end of the Chevron deference in Loper Bright v. Raimondo last legislative session. DOL argued that its interpretation was reasonable and not prohibited by the Wagner Act because the rule did not directly state that it went beyond the statute. However, since the court was no longer required to defer to the agency's interpretation of the law, it could easily see that the wording of the rule “mirrors” that of the Wagner Act and so concluded that DOL the Wagner law secretly changed.
But the ruling also highlights one of the important questions that remained unanswered in the Loper Bright case. Loper Bright recognized that Congress sometimes grants agencies broad authority to implement regulations using discretionary delegations. Consider laws that authorize authorities to issue “reasonable” or “necessary” regulations. The Supreme Court said in such cases the best interpretation of the law may be that authorities have the power to exercise their discretion in making regulations. However, it is unclear what role courts should play in reviewing such discretionary delegations, beyond monitoring external borders.
This law allows the DOL to establish criteria by which employers certify that American agricultural workers will not be harmed by the issuance of H-2A visas. The producers had argued that the connection between this authority and the regulation had been greatly weakened. If a simple rule-making directive designed to ensure that H-2A visas do not have an “adverse impact” on American agricultural workers allows the DOL to recreate the same sophisticated rubric that was an intensive one in the 1930s If it required congressional attention, it gave it great legislative power through a low-profile certification requirement. If this is the case, the only limitation on DOL's discretion is that it cannot directly violate any law of Congress. This ruling still allows the agency to claim vast powers with questionable authority.
In the future, other agencies may point to the Supreme Court's dictum on discretionary delegation as a way out that restores much of the authority they appeared to have lost in Loper Bright. Here it is difficult to imagine that Congress intended to transfer such great power through an innocuous certification provision. And discretionary delegations to agencies on tangential but supporting issues like the H-2A certification requirement are not uncommon. So if courts allow agencies to rely on broad discretionary authority to gain authority over an entire program or statutory system, then they are back to where they were before Loper Bright.
Agencies are often seduced by the idea that they can do a better job of making laws than Congress. The job of the courts is to remind them of their place. That’s what the court did by invalidating the DOL rule. Of course, the case is still far from its goal. The settlements negotiated under the Wagner Act remain off-limits to DOL bureaucrats for now. While it is debatable whether it makes sense to exclude farmworkers, Congress made that decision and DOL is implementing the laws passed by Congress, although DOL believes an update to the Wagner Act is overdue. If Congress decides to significantly expand labor protections to primarily benefit foreign workers, it can expect to hear from American voters. This accountability process cannot be avoided by a troubled agency.
The separation of powers undoubtedly slows down the work of government officials. It requires debate, consideration, negotiation and compromise. Efficiency is not its selling point. Respect for self-government is. Any attempt to improve the Wagner Act must be done the old-fashioned way, however slow—by the elected representatives of the American people.
Disclosure: The authors represent GFVGA and Miles Berry Farm in the challenge to the rule discussed here.
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