The unconstitutional aspects of Card Check

Richard Epstein, University of Chicago law professor, explains today why the Orwellian-named Employee Free Choice Act is unconstitutional. He focuses on the mandatory arbitration requirements of the law, an aspect that may be even more dangerous to management although it hasn't gotten as much publicity as the provisions ending secret ballots.

The EFCA takes away the employer's right to walk. Now the successful union, backed by direct government power -- i.e., mandatory arbitration -- can force itself on the firm. Yet the proposed law does not let any court block the deal or ensure that the mandated terms offer a reasonable return on its invested capital. (Even modern rent control statutes require that much.)

The government-chosen panel could well impose terms that might cripple the firm competitively. Consider that the takings clause surely prevents the government from forcing any person to buy real estate for twice its market value from a seller. That same principle applies to this labor law: No government should be able to force a firm to hire labor at $50 per hour when the company is not willing to pay half that much.

Worse, the EFCA also permits the government arbitrator to strip the employer of all its standard management prerogatives on everything from subcontracting out to promotion policy. By flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the takings clause.

There is so much to despise about this law. And enough to examine why labor has latched onto this bill as their number one priority and why Democrats are ignoring all its questionable elements. When even Al Sharpton has come out against the bill, it's time to kill this bad bill.