Aug 7, 2024

The devil is in the details: NCAE has taken the agencies to court

The U.S. is presently about halfway through the second year of its 118th Congress. The Congress, which started on Jan.3, 2023, will end on Jan. 3, 2025. 

For agricultural employers, this Congress is unlikely to be fondly remembered. It will not be remembered for what it did, but rather for what it did not do. And this Congress’ do nothingness has kicked wide open the door for things that will take employers years to fix.

Some members of Congress will look for an out that keeps them from being held accountable. Some will point to the fact that it took 15 ballots for the House to finally elect its Speaker, and that only occurred after significant horse trading had taken place. 

But then that speaker didn’t last very long because one of the backroom deals that allowed his ascension to the speakership, led to the demise of his tenure. For the first time in history, the speaker was removed by a motion to vacate. So, what did the House do after removing their leader? They went on recess.

Finally, a new speaker was elected. But this speaker has had to survive his own motion to vacate. 

Dysfunction junction!

In the very first year of this Congress, the two Chambers passed just 27 laws off their respective floors that made it to the president’s desk for his signature — 27, that’s it! 

Personally, I am not one of those voters who believes Americans need a lot of new laws. I don’t find that we are lacking when it comes to statutes. However, when the Congress doesn’t act, it’s stunning what happens absent their proper functioning.

Regulatory agencies have rushed to fill the void left by the Congress. Because, of course, political appointees are not beholden to voters and can create plenty of mischief when guardrails are not clearly in place to keep agencies in their lane. 

This is the unfortunate circumstance the American public finds itself in today.

Regulatory agencies have gone on a spree. While the Congress was failing to do its job, regulators have been aggressively doing theirs. Agencies foisted more than 3,000 new pages of regulations on congressional constituents in this Congress’ first year.

So, when the Congress is unable to properly act, and the regulatory agencies do their thing, what options are available to protect constituents? 

Not many, unfortunately.

NCAE has taken the agencies to court

We presently have lawsuits funded by our members against the Department of Labor (DOL) in the D.C. Circuit Court of Appeals and the Federal District Court in the Western District of Florida in Tampa. Our case in the Appellate Court is in opposition to the DOL’s H-2A program rule. The case in Florida opposes the DOL’s Adverse Effect Wage Rate (AEWR) regulation.

We have also funded “Friend of the Court” or amicus filings in two state courts involving union “card check” activities. Card check is labor unions’ most recent effort to part farmworkers from their hard-earned wages by convincing state legislatures that secret ballot elections allow workers to receive too much factual information about what unionization really means. One of these amici was filed in New York and the other was filed last week in California.

Also last week, a nonprofit legal organization called the Southeastern Legal Foundation filed for injunctive relief against the DOL’s recent “Worker Protection” rule that would allow the unionization of workers in violation of both laws passed by Congress, and Constitutional interpretations of law by the U.S. Supreme Court. NCAE is supportive of this action, too.

The next Congress, the 119th, must succeed in protecting constituents from blatant bureaucratic overreach. Otherwise, the courts will just get busier. 

As I mentioned at the outset, the devil is in the details.

Written by Michael Marsh

Michael Marsh is the president and CEO of the National Council of Agricultural Employers (NCAE).