Seems the giant obstacle against progressive states making union busting a felony — I was wondering why such an easy step was so neglected; blamed it on social inertia or something — is the decades, no, generations of judicial decisions that federal preemption bars almost any labor law action by any state, even actions simply supporting federal law (which works with minimum wage for example).
The judicial rulings, decade in and decade out have created an extreme wall of federal preemption, far more extreme than any other area of law I believe — though Congress never suggested any such thing. Normal presumption is not to presume preemption.
Neglected has been invoking the First Amendment as a powerful argument to back off preemption: If a state or local legislature passes a law that makes exercising freedom of association (e.g., organize a labor union) possible where it would not be possible otherwise, then, Congressional preemption of labor law falls to the First Amendment.
Armed with this simple, plain common sense approach, progressive legislatures and citizen ballot initiatives can proceed to enact legislation without the automatic presumption of being blown out of the water.
Thing is to get the ball rolling.
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Seems the giant obstacle against progressive states making union busting a felony — I was wondering why such an easy step was so neglected; blamed it on social inertia or something — is the decades, no, generations of judicial decisions that federal preemption bars almost any labor law action by any state, even actions simply supporting federal law (which works with minimum wage for example).
The judicial rulings, decade in and decade out have created an extreme wall of federal preemption, far more extreme than any other area of law I believe — though Congress never suggested any such thing. Normal presumption is not to presume preemption.
Neglected has been invoking the First Amendment as a powerful argument to back off preemption:
If a state or local legislature passes a law that makes exercising freedom of association (e.g., organize a labor union) possible where it would not be possible otherwise, then, Congressional preemption of labor law falls to the First Amendment.
Armed with this simple, plain common sense approach, progressive legislatures and citizen ballot initiatives can proceed to enact legislation without the automatic presumption of being blown out of the water.
Thing is to get the ball rolling.
**********************************************************
Louisiana Law Review
Volume 70, Number 1, Fall 2009
Reforming Labor Law by Reforming Labor Law Preemption Doctrine to Allow the States to Make More Labor Relations Policy
Henry H. Drummonds
http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=6305&context=lalrev