The most provocative and potentially most dangerous economic policy initiative of the Obama administration is only now beginning to attract coverage — its proposal to shut down Boeing’s second 787 Dreamliner plant in right-to-work South Carolina in mid-stream (after hundreds of millions of dollars have already been spent) in order to confine Boeing’s new airplane construction to a union state (Washington).
There is much convincing analysis that the National Labor Relations Board has no authority or precedent for doing this. What needs to be examined is whether the move in fact is not also unconstitutional as a frontal assault on a central building block of our national economy.
When most people think of the commerce clause of the Constitution, they think of how much power it authorizes Congress to legislate over the American economy. Does it, to take a current example, support the individual mandate in the Obama health care legislation? Most people do not think about an equally important but little (publicly) understood aspect — namely, the “dormant” (or “negative”) commerce clause. This is the part of the Constitution most responsible for our vibrant economy.
This central pillar of our economic system was developed early in our history by Chief Justice John Marshall. The great British historian Paul Johnson has observed that Marshall’s rulings “formed a firm legal basis on which entrepreneurial capitalism could flourish mightily. There has been nothing to rival [this[…]] in the entire world history of jurisprudence — countless millions of ordinary American enjoy affluent today because” of Marshall. His rulings established that, even in the absence of federal legislation banning state interference with the internal market of the U.S., the commerce clause itself prohibits state interference with the free flow of commerce.
What relevance does this doctrine have in the current Boeing controversy? What the Obama administration is asserting is that, even though Boeing has added jobs to the initial Dreamliner production line in Washington state and its union agreement there allows for new investment elsewhere, it cannot expand production in a second line in South Carolina — because that would be a violation of the labor laws as an unfair labor activity against the union in Washington.
What this assertion amounts to is a veto given a union state over plant investment in any right-to-work state like South Carolina, one of 22 states which do not require union membership as a requirement of employment in that state. It is hard to imagine a clearer violation of a “central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new union would have to avoid tendencies toward economic Balkanization that had plagued relations among the colonies and later among the states under the Articles of Confederation,” as the Supreme Court recently wrote.
It turns out, of course, that Congress has itself repeated the constitutional mandate for the purposes of this controversy in Section 14(b) of the Taft-Hartley Act of 1947, which guarantees the states’ right to pass right-to-work laws like that of South Carolina. So there is a double guarantee against what the White House wants to do.
It is true that the dormant commerce clause operates primarily against the states, not the Congress, so theoretically Congress could possibly require union membership in every state. Aside from the conflict with the right to free association, this would be politically impossible.
So the NLRB is trying indirectly to let the states initiate precisely the kind of Balkanization the basic framework of the Constitution was designed to prohibit. Liberal supporters are not shy about identifying why this is so important. It is not about corporate prerogatives, they say, but about America’s move to the right in the past 30 years as conservative right-to-work states have grown faster than the more liberal states in the old Northeast.
George Washington, Alexander Hamilton and John Marshall must be rolling over in their graves.
• C. Boyden Gray has served as White House counsel and as ambassador to the European Union.
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