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News and Commentary on Workplace Health & Safety, Labor and Politics

Wednesday, July 06, 2005

Supreme Court Abolishes OSHA, EPA

Well, not yet, anyway. But pay attention.

Amidst all of the discussion about the impact of a new Supreme Court justice on abortion and other "cultural/values/religious/moral" issues, a few bloggers and journalists have also been looking at the implications for this administration's real friends, corporate America.

Political analyist David Sirota points out that
the media regularly misses the real story about how Big Money runs the show in Washington, D.C. Reporters seem to prefer the fake storyline of "conservative" vs. "liberal" as opposed to the real storyline of "Big Money" vs. "Ordinary Americans." That's what this fight is ultimately going to be about, and Corporate America is going to thrust itself into the middle of this, ramming millions of dollars into the process to make sure they get the climax they want - a Justice they can be in bed with whenever they desire, and that will perform whatever dirty little favors Big Business says. Our side had better be ready to expose their scheme - and counter it with our own fight.
I have already written about some of the theoretical/ideological underpinnings of the "constitution in exile" movement which argues that the most important rights are economic rights, particularly the right to property, and anything that take away those rights -- such as environmental or workplace safety laws -- are, or should be, unconstitutional. As Jeffrey Rosen wrote in the NY Times last April, the implications of this movement are enormous and need to be remembered in the current struggles over Bush's court nominees:
Cass Sunstein, a law professor at the University of of Chicago, will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong." As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power." In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.
Rosen pointed out in an earlier article that although the Rehnquist court has struck down 33 federal laws since 1995, the highest annual average ever, the moderates (Justices Sandra Day O’Connor and Anthony Kennedy) have kept the court from repealing any major environmental or workplace safety laws. And there are plenty of lower court Republican-appointed “candidates” for the Supreme Court whose previous actions show that they would be ready and willing to declare the Occupational Safety and Health Act or various environmental laws unconstitutional.

So much for theory. What about the simple fact that Bush has a tendency to reward his friends -- who also happen to be his corporate supporters? Blogger and labor economics professor Nathan Newman puts it bluntly:
Forget the Ten Commandments: corporate America knows that case after case decided by the Supreme Court are about bread-and-butter economic issues.

Check out the National Association of Manufacturers Supreme Court review for this last term. A whole mess of cases you probably didn't even hear mentioned in the media but of great interest to corporate America.

Or see this list of cases of interest to the National Federation of Independent Businesses.

We need to emphasize that Bush will be picking a Justice to please these interests, not just the religious right.
NAM itself agrees, as VP Pat Cleary writes in the NAM Blog:
Over 80% of a federal judge's civil caseload is consumed with issues we care about: contracts, torts and employment litigation. We want justices who make decisions based on what a contract says, not on what they think it should say, and based on what the law says, not on what they think it should say.

Business has a lot riding on this third branch of government. They can undo all the good we've accomplished in the legislative branch. We need to pay attention. Here's just a sampling of upcoming cases affecting manufacturers.
The interesting thing here is that when it comes to Supreme Court appointments, the administration's religious "values" friends are not necessarily on the same wavelength as the administration's corporate friends

As the Wall St. Journal pointed out last week,
The emerging corporate agenda is different from, and at times contradicts, that of their religious-conservative allies. The Christian right, represented by groups such as the Family Research Council in Washington, has been lobbying the Bush administration to appoint a Supreme Court justice who opposes abortion and gay marriage and favors school prayer and public religious displays. Top business priorities include more protection for intellectual-property rights, more flexibility in clean-air emissions standards, restriction of jury awards and a lenient interpretation of the Sarbanes-Oxley law that imposes new accountability and disclosure requirements on businesses.


What business wants from the high court sometimes undercuts basic conservative principles. One example has to do with federal authority and states rights. Corporations increasingly have sought protection from unfavorable state laws and court rulings by arguing that federal law "pre-empts," or sets aside, that of the states. This argument could be used to rein in ambitious state attorneys general, such as New York's Eliot Spitzer, who has tried to apply more stringent standards for corporations than those sought by the Securities and Exchange Commission or the Environmental Protection Agency.

Religious conservatives, by contrast, tend to embrace the more traditional conservative position favoring states rights. So they encourage states and municipalities to stretch or go beyond high court precedent on abortion, prayer in public or religious displays.
Bloomberg news adds more detail:
Both Scalia and Thomas read the U.S. Constitution as conferring only those rights contemplated by its authors. They say the Constitution doesn't protect abortion and gay rights --and likewise doesn't bar excessive damage awards.

O'Connor, by contrast, took a less doctrinal view of the Constitution, letting her pro-business leanings take over.

"Social conservatives admire Justices Scalia and Thomas, but Justices O'Connor and Kennedy have been much better for business interests," says Walter Dellinger, a Washington lawyer and Duke University law professor who was the Clinton administration's top Supreme Court lawyer. "Pragmatism works well for business. Ideology often does not."

Scalia and Thomas also take a "strict interpretation" approach toward federal statutes, hewing to the words of the law and leaving it to Congress to address any adverse consequences. Using that school of reasoning, Scalia and Thomas voted to allow job-discrimination suits that O'Connor would have forbidden.

In addition, Scalia and Thomas at times voted to permit state-court product-liability lawsuits when O'Connor would have imposed a single, national standard limiting suits.


Like Scalia and Thomas, several prospective nominees being pushed by social conservatives are only lukewarm in their support for business. That list includes Emilio Garza, a San Antonio-based judge on the 5th U.S. Circuit Court of Appeals, who in 1997 indicated he would overturn the constitutional protection for abortion.

In 2002 the law journal Judicature found Garza to be the least conservative of six potential nominees on economic and labor-regulation issues, siding with business only 54 percent of the time. Another favorite of hard-line conservatives, 4th Circuit Judge Michael Luttig of Alexandria, Virginia, was just behind, ruling for business 59 percent of the time.

By contrast, the candidate who may have the clearest pro- business sympathies is also the one facing the most vocal opposition from social conservatives: Attorney General Alberto Gonzales.
What this all adds up to is an unprecedented involvement of business money and influence in the process of picking the next Supreme Court justices. The Journal reports that NAM's President John Engler is setting up an endorsement process:
A new committee of executives will vet any White House nominee based on his or her business rulings.

The NAM committee's findings will be distributed to Capitol Hill and to the arsenal of advocates employed by the association's more than 220 trade-association members. They will also go to 14,000 corporations, including Toyota Motor Corp., Emerson and Caterpillar Inc. Those member companies and groups, in turn, have the ability to activate roughly 17 million employees and executives to exert local pressure on wavering senators. Big employers increasingly have tried to mobilize their workers on other political issues.
The LA Times notes that the Chamber of Commerce has been in this game for a while:
It endorsed Thomas, Scalia, Ruth Bader Ginsberg and Stephen G. Breyer but did not see the need to campaign for those nominees.

This year, however, the organization is likely to be in campaign mode. At both the Chamber and National Assn. of Manufacturers offices, officials said the decision would be based on a candidate's overall fitness for the job. However, a candidate's past position on issues such as labor law, punitive damages, tort reform and regulation also would be reviewed.
Let's make sure we keep our eyes on the ball, and lets make sure our Senators and the media pay attention to the real issues as well.

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