Last week, a decision by the D.C. Circuit Court of Appeals provided an excellent example of how both presidential action and inaction can matter. Because of the former, the National Labor Relations Board had issued a rule intending to alleviate the power disparities between workers and employers. But in part because of action by Republican presidents and inaction by Democratic presidents, the rule is no longer in effect. And while the outcome of the case is hardly surprising, the sheer radicalism of the court's holding is yet another sign of how in the tank much of the powerful D.C. Circuit is for powerful business interests.
The case involved a 2011 regulation issued by the NLRB which required employers to post notices informing workers of their right to join a union and providing basic information about how to contact the NLRB. The regulation was challenged by business groups based on an assortment of legal arguments. The District Court upheld the authority of the NLRB to issue the regulation, although it did strike down two provisions related to enforcement. "Neither the text of the statute nor any binding precedent," found Judge Amy Berman Jackson, "supports plaintiffs’ narrow reading of a broad, express grant of rulemaking authority."
A three-judge panel of the D.C. Circuit consisting entirely of Republican appointees (including the notorious arch-reactionary Janice Rogers Brown) reversed Jackson and found that the regulation was illegal. Moreover, as with the recent D.C. Circuit opinion all but eliminating the presidential recess appointment power, they did so with an unreasonably broad opinion creating a transparently unworkable legal doctrine.
Had the Circuit merely held (as a concurring opinion did) that the regulation exceeded the statutory authority of the NLRB, this would be an inferior but not completely unfounded interpretation of admittedly ambiguous statutory text. And a narrow argument would at least allow Congress to revise the law to allow the NLRB to reinstate the reasonable notice requirement. But the Circuit went further than that, remarkably arguing that the provision violated the free speech rights of employers. According to the Court, the regulation violated a provision of the NLRB holding that the non-coercive speech of employers cannot constitute an unfair labor practice. The decision also strongly implies that the regulation violates the First Amendment as well.
This argument is not serious. As Judge Jackson noted, "the Board’s notice posting requirement does not compel employers to say anything." The required notice contained numerous indications—including a large NLRB logo at the top—that the speech was coming from the government, not the employer. In addition, the notice is neutral, informing workers not only of their right to join a union and engage in various labor activities, but also of their right to choose "not to do any of these activities, including joining or remaining a member of a union."
If taken seriously, the idea that requiring employers to provide information about legal privileges and requirements violated their free speech rights would lead to transparently absurd results. As AFL-CIO President Richard Trumka noted in a statement following the ruling, this logic proves too much:
In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The D.C. Circuit ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas.
Perhaps next the D.C. Circuit will be able to find an appropriate case to end the tyranny of restaurants being forced to notify their employees that they have to wash their hands after going to the bathroom.
There are additional reasons to believe that this argument is being advanced in bad faith. Consider, for example, Supreme Court majorities have held that state "informed consent" requirements compelling doctors to provide (often scientifically inaccurate) information to patients about abortion are constitutional. And these requirements don't even have to be neutral—they can explicitly favor carrying a pregnancy to term over choosing an abortion. If such requirements do not violate free speech rights, the relatively innocuous NLRB provision isn't even a close case. And yet it is inconceivable that any of the members of the D.C. Circuit panel would find this compelled speech unconstitutional.
And consider an even more directly relevant example. In 2003 the D.C. Circuit upheld a Bush administration requirement that government contractors inform workers of their right not to join a union. It's hard to imagine a starker double standard. Granted, the legal challenge to 2003 did not challenge the regulation on free speech grounds—presumably because they assumed that such an argument would be laughed out of court—so theoretically the D.C. Circuit may prove equally willing to apply their innovations in free speech law to anti-labor as well as pro-labor regulations. I know how I'm betting.
The latest example of the D.C. Circuit bending over backward to defend business interests is yet another reminder of why federal judicial appointments matter. Alas, a deadly combination of Republican obstructionism and Obama administration fecklessness has prevented a single one of the four vacancies on the court from being filled during Obama's tenure in office. The failure of the administration to take judicial appointments seriously enough when it had more Democratic votes in the Senate will have negative ramifications for many years.