Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘executive orders’

This is bound to end well: tax hikes by decree

Obama urged to raise taxes unilaterally on disfavored groups by regulation if Congress won’t act:

Out of deference to Congress, the Treasury Department has traditionally avoided making policy in areas where the legislative branch may act. “But when the legislative process is as broken as it has become today,” said Daniel N. Shaviro, a law professor at New York University, “it’s simply inevitable that administrations will care less about such comity, and be more willing to advance their policy views in controversial areas through the unilateral exercise of regulatory authority.”

That’s the ticket. We’ll call it “simply inevitable”! [Victor Fleischer, NYT “DealBook” via TaxProf; earlier on pen-and-phone executive orders here, etc.]

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Phone, pen, and Obama’s assertions of executive power

All sitting Presidents try to press the power of their office into doubtful areas. President Barack Obama has been particularly aggressive about doing so, according to the panelists at a May 21 discussion held at the Cato Institute. Georgetown law professor and Cato fellow Nicholas Quinn Rosenkranz noted that the Constitution’s Take Care Clause directs the President to take care that the laws are faithfully executed, and descends directly from centuries of struggle against the “dispensing power” claimed by pre-modern English kings — that is, the power to dispense with enacted legislation entirely where the royal will is better served that way, a claim of power that goes beyond simple prosecutorial discretion or the pardon power.

Rosenkranz pointed to a number of Obama executive actions that are hard to reconcile with the Take Care clause. The text of the Affordable Care Act, for example, states that the employer mandate prescribed by the law was to begin Jan. 1, 2014. “You don’t need a lawyer to interpret this, you need a calendar.” Yet President Obama elected unilaterally to delay the mandate and substitute a later effective date of his own choice. Likewise, the President’s suspension of some immigration regulations overrode the clear letter of U.S. law, aside from any pluses or minuses it may have had as a policy matter.

“President Obama is being the kind of President Nixon wanted to be,” said panelist Jonathan Turley, a well-known legal commentator and law professor at George Washington University: “Many Democrats will rue the day they stood by while the President asserted these kinds of powers.” Panelist Andrew Grossman of Cato said future presidents are likely to follow Obama’s lead and assert their own right to suspend the operation of other laws.

Bonus: At a separate event, Cato welcomed George Mason U. law professor Frank Buckley to talk about his book The Once and Future King: The Rise of Crown Government in America. I offer a question at the beginning of the comment period.

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Labor and employment roundup

  • Los Angeles officials push SEIU-backed scheme to fasten unions on nonunion workforce at LAX airport [Brian Sumers, Contra Costa Times]
  • Want to empower cities? Reform binding labor arbitration [Stephen Eide, Urbanophile]
  • “Explainer: What Does President Obama’s Equal Pay Day Executive Order Change?” [Rachel Homer, On Labor]
  • One lawyer’s advice: “when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves” [Jon Hyman on Sixth Circuit retaliation case]
  • Detroit juggles pension numbers to fix deficit, papers over the real problem [Dan Kadlec, Time; Shikha Dalmia, Washington Examiner]
  • No room left to cut budget, part 245,871: federal grants promote labor unions [Examiner]
  • More on EEOC’s campaign to limit employment criminal background checks [Coyote, Daniel Schwartz]

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Labor and employment roundup

  • “Will ‘Microaggressions’ Make Their Way Into Employment Discrimination Cases? Have They Already?” [Daniel Schwartz]
  • More phone and pen: Obama executive orders will forbid federal contractors from retaliating against employees who discuss pay with colleagues, direct DoL to require compensation data from contractors based on sex, race [AP, White House]
  • List of best and worst states for employee lawsuits (from employer’s perspective) includes some surprises, although California’s status as worst isn’t one of them [Insurance Journal] $20K to fend off suit “for harassment and intimidation by her manager — when the manager was her sister” [Coyote; sequel to “Ventura County blues,” on which earlier here and here]
  • Wage/hour activists step up pressure for federal enforcement, more detailed pay stubs to combat off-clock work, alleged misclassification [ABA Journal]
  • “A National Minimum Wage Is a Bad Fit for Low-Cost Communities” [Andrew Biggs and Mark Perry, The American] “Immigration, Eugenics, and the Minimum Wage” [Matt Zwolinski, Bleeding Heart Libertarians]
  • Court decision may amount to end run enactment of something like ENDA minus the legislative compromises and exceptions [Tamara Tabo, and thanks for link to “good reasons” for opposition; a second view from Jon Hyman]
  • “DOL (Department of Labor) Persuader Rule Undermines Attorney-Client Privilege, Attorney Generals Say” [Howard Bloom and Philip Rosen (Jackson Lewis), National Law Review, earlier]

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Obama’s new overtime decree

Here comes a more regimented, polarized, lawsuit-ridden workplace with less upward mobility — at least if the President gets his way. I deplore some of the likely effects, unintended or otherwise, in a new Cato post: “Increasingly, Obama’s binge of executive orders and unilateral decrees to bypass Congress is coming to resemble a toddler’s destructive tantrum.” More: Daniel Schwartz, Daniel Fisher. Our wage and hour law category has more than 80 posts.

More from Scott Shackford, Reason, from Brett Logiurato at Business Insider on organized business opposition, and from the WSJ. And from George Leef, John Locke Institute:

The Fair Labor Standards Act is the federal statute that imposes the minimum wage along with other intrusions into what ought to be matters of contract between the parties.There is no real constitutional authority for the federal government to dictate the terms of labor contracts. During the New Deal, Congress relied upon the notion that if anything might have any possible effect on interstate commerce, then it’s fair game for federal control. That idea stretches the concept of interstate commerce far beyond its intended meaning.

Yet more: Welcome Andrew Sullivan, Washington Times readers. And see followup post (why this could do much more damage to economy than minimum wage hike)

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February 11 roundup

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State of the Union speech

Update: I’m in this Cato video, my brief contribution on the president’s executive order powers beginning around the 2:15 mark:

I tweeted and liveblogged the State of the Union address last night so you wouldn’t have to watch. Here are Twitter highlights, in regular rather than reverse chronological order:

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Labor and employment law roundup

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