Congress enacted the Federal Arbitration Act in 1925. It said mandatory arbitration was legal.
Congress enacted the National Labor Relations Act in 1935. It said mandatory arbitration clauses were not legal.
Gorsuch was appointed to the Supreme Court in 2017. He just wrote a decision that invalidated the National Labor Relations Act (aka the Wagner Act) in favor of Federal Arbitration Act, despite the fact that the National Labor Relations Act was enacted ten years afterwards.
That’s a frightening precedent. Congress clearly enacted the Wagner Act. The current decision isn’t claiming it violated the Constitution. This is the Supreme Court compared a new law to an old law and deciding it liked the old law better so it’s overturning the new law.
And I’m using the term new law in relative terms. As I noted, the law that the court is overturning was enacted in 1935. That means the court could now use the same principle to overturn any law written in the last hundred years. What’s next on the agenda?
The law goes on to say “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title.”
If you require employees to accept a mandatory arbitration clause you are interfering with, restraining, and coercing those employees from pursuing other means of settling disputes.
The trouble is that, to give the law this interpretation would be to assert that it overturned the specific contrary assertion of another law. The majority expressly addresses this in their opinion, holding that the basic principle of reconciliation of seemingly conflicting laws is to find that one overturns the other only when a more specific indication of such Congressional intent exits. In other words, you can’t kill a prior provision simply by passing a subsequent provision that doesn’t specifically say so, and only gets read to mean that by applying a “liberal” interpretation of the subsequent provision.
Hate to say it, but I’m firmly with the majority here, even if I dislike the outcome (and I do).
Let’s apply that principle. The Eighth Amendment prohibits “cruel and unusual punishments”. Does that law therefore prohibit drawing and quartering? Apparently not. Drawing and quartering was an accepted historical legal punishment. And the Eighth Amendment didn’t explicitly include it in its blanket prohibition. According to your argument, if Congress had meant to ban drawing and quartering as a cruel and unusual punishment, it would have specifically said so.
I disagree with this interpretation. When a law is enacted which bans a broad category of actions as illegal, it includes all of those actions - even if it doesn’t list them all individually.
If the contract required employees to have sex with the boss, would that be legal? Obviously not. A contract cannot include requirements which are illegal.
The Wagner Act says employers cannot restrain employees from exercising their rights. A contract which mandates arbitration is clearly restraining employees from exercising other means to settle disputes. So that contract is in violation of the Wagner Act.
*There were two laws. Which governed two related but distinct spheres.
*Then about 6 years ago a statutory body, not even a Court, held that some provisions of one law were subject to another.
*The SCOTUS has ruled, actually no it’s not. If you want it to be then Congress has to make such a change not a statutory body.
Absolutely and wholly unexceptional finding. If anything it’s RBG who is supporting the conservative position, ie giving deference to Gov bodies, and Gorsuch is adopting the “liberal” position of refusing such deference.
I think the split here is based on age and background, not political position. Ginsberg is from a generation where once a Government body had showed something to be in their jurisdiction, that was it, Courts would uphold it. Gorsuch, who is younger, adopts the more modern approach of critically analysing acts done against the framework authorising it.
Threads like this remind me why it takes years of study to become a lawyer.
There’s a rule of statutory construction which disfavors repeals by implication. In other words, the courts are to presume that Congress does not intend to reverse the effects of a prior law unless it does so explictly. As Justice Stevens wrote back in 1988:
(Quoting US v Fausto, 484 U.S. 439, 463 fn. 9 (1988) (Stevens, J. in dissent).
So my first question to you is: when you say, “That, to me, would seem to allow them to engage in a class action lawsuit against their employer,” were you aware of and applying that canon?
Because the Wagner Act did not expressly repeal earlier law, and doesn’t directly contradict it. The rules of statutory construction say that the correct approach is to assume Congress meant both provisions to have effect, and ask how that could be harmonized in one result.
Do you not agree that this is the applicable rule of statutory construction? If not, why not?
I’ve think we’ve given up on the idea that the Supreme Court is a non-partisan body ruling impartially on issues of law. It’s become just another political body like Congress or the Presidency. The goal now is to appoint a majority of your party’s justices to the court so they can legislate for the party.
If judges weren’t partisan representatives of the party that appoints them, then the Republicans wouldn’t have cared who appointed Scalia’s replacement. If judges just issued impartial non-political decisions then any judge could have filled the seat. But the reality is the Republicans wanted a Republican judge so they could count on him issuing Republican decisions. And Gorsuch is delivering (just as Scalia did).
So this decision had nothing to do with legal philosophy. Gorsuch issued a decision that was favorable to Republican interests, no differently than what Trump or McConnell or Ryan do. Any legal theories mentioned in the decision is just window dressing.
I don’t think it is helpful to overstate things. The freedom to unionize and collectively bargain was not addressed in Epic, at least not that I saw after a quick skim. Nobody is disputing the right of these workers to unionize and try to replace existing labor contracts with ones that allow class actions or other forms of collective redress. Rather, the case was about whether workers can invalidate some terms of existing contracts in order to enforce other terms of the same contracts because they are using a collective method (class actions).
As a matter of policy, my first impression was that it seemed clear that collective bargaining ought to cover this sort of employment issue. I think workers and consumers have too little bargaining power when it comes to things like this. On reflection, though, I do not think that’s necessarily a good idea – I think I agree with the outcome of this case despite my liberal bias.
In my state (Oregon), labor laws provide a penalty against unpaid wages. (If I recall, shorting an employee even a single cent, and refusing their written request to pay what is owed, essentially entitles the worker to 30 days’ wages.) That’s the proper remedy for this situation. There’s an existing, straightforward framework and it provides a deterrent effect. Perhaps I’m out of touch with this aspect of the workforce, but I don’t see how opening up the possibility for class actions here would help things.
Moreover, an essential function of contracts is to help all involved parties plan for future events. Allowing former workers to unionize and institute a class action that invalidates a common provision of many (and likely disparate) contracts seems like a recipe for uncertainty, which hurts everyone. Czarcasm – I think the agency you’re looking for is the National Labor Relations Board.
I was not aware of it but it certainly makes sense as a policy.
That said I disagree with Gorsuch.
The NLRA clearly intends to allow employees to band together for their “mutual aid and protection” and I do not think congress ever thought for a second this impinged on the FAA. Indeed it has taken 80+ years to get here so seems a novel idea to use the FAA to undo the NLRA.
All a company needs to do to rid itself of a class action from its employees is include a clause that employees can’t negotiate in a hiring contract. Seems rather ridiculous to be able to thwart congress so simply.
There exists a statute, the Arbitration Act, which is the other statute in this case that you are ignoring. There does not exist a “Have Sex with Your Boss Act”, so we can file your post under Bad Analogies.