Can Congress impeach and convict an officer such as President Trump after he has left office? Most academics considering the issue have concluded that the removal of an executive branch officer or judge from office does not defeat Congress’s jurisdiction to impeach and try the officer. They reason that, even when an officer is no longer in “office,” the House may still impeach and the Senate convict in order to disqualify the individual from serving in public office in the future. Members of Congress tried to galvanize support to impeach both President Clinton and President George W. Bush after they left office. Although the constitutional language is far from clear, Parliament exercised a continuous power of impeachment prior to the Founding, and many of the newly independent states followed in that tradition. Moreover, on at least one occasion, the House and Senate debated the propriety of continuing the impeachment process after an officer was no longer in office and, in that case, the House impeached and the Senate voted to acquit, but by a slim margin. Nonetheless, I argue that Congress’s impeachment authority is best understood as a weapon of last resort to remove an officer from a position of public power, and that the concomitant power to disqualify an officer from future service does not transform the impeachment remedy into a potential Sword of Damocles hanging over the head of officers for the rest of their lives. Otherwise, the impeachment power would resemble a Bill of Attainder and could be used as a tool to punish opponents of a sitting Congress as well as disqualify leading opposition party candidates who previously had served in offices of public trust from participating in federal politics in the future.
Contemporary labor organizing, with all its vibrance, variety, and vigor, seems to be in a virtuous cycle in which organizing success prompts favorable public attention, which in turn contributes to more organizing. More employees struck in 2019 than in any year since 1986. Since 2010, support for unions has climbed from less than half of Americans polled to about three-fifths. Some economists now believe that unions are “a critical check on the tendency of capital to vacuum up the gains from economic growth.”
In this Essay, I examine President Trump’s uses of executive privilege, both explicit and implicit, to stymie the congressional investigations that led to his impeachment in late 2019. Like so much else in his presidency, Trump’s sweeping claims of exemption from oversight are both symptomatic of a long trend toward presidential imperialism, and especially brazen and dangerous manifestations of the same. In the Essay, I take both a wide and a long view of Trump’s impeachment intransigence. That is, I consider how his behavior reflects and thus far, has exacerbated judicial and political branch trends favoring presidential power. Looking to the future, I acknowledge that executive aggrandizement episodes tend to build on themselves, contributing to a ratchet effect that enhances presidential power. I argue, however, that this one-way trajectory is not inevitable. Indeed, some presidential abuses become anti-canonical and spark a backlash against future such actions. President Trump’s obstruction deserves to meet this fate.
With union density falling to alarmingly low levels and dropping, many have largely written off traditional business unionism and have turned to so-called alt-labor forms of worker empowerment, particularly worker centers. But traditional unions continue to provide valuable service to the workers they represent and to society as a whole. The union wage premium may not be as strong as it once was but it still remains and workers represented by unions are far more likely to have health and retirement benefits than their unrepresented counterparts. Moreover, it is through traditional transactional business unionism, that workers find protection from disagreeable working conditions and arbitrary management actions. And unions are legally required to be democratically run. Worker centers, on the other hand, while doing a laudable job of obtaining justice for low wage workers, particularly with respect to wage theft, generally do not provide sustainable continuing representation of workers with their employers, are not accountable to the workers they represent, are financially dependent on unstable foundation funding, and, even with respect to wage claims, often have to limit their intake so as not to exceed their capacity. Moreover, while some groups thought of as alt-labor, such as the Fight for Fifteen, have succeeded at the state and local level in securing worker-protective legislation, particularly increases in the minimum wage, union-represented workers are far more likely to be aware of and take advantage of statutory workplace rights. This article urges that we not abandon traditional business unionism and suggests a few ways forward that may help restore traditional labor unions’ roles in representing workers in the United States.
Even though alt-labor does not have significant labor market power when compared to labor unions, its impacts are manifold. Alt-labor has given rise to novel state and local legislation improving wages and working conditions for low-wage workers across the country. It has fostered new collaborations with government enforcement agencies to improve the implementation of rights on the books — to “make rights real.” It has promoted new bargaining and worker organizing strategies, outside of traditional models. This article highlights another achievement of alt-labor. Alt-labor has served as a catalyst for creative litigation efforts that argue for application of existing workplace protections to non-traditional populations of workers and their organizing efforts. In this way, it has pushed to reinterpret, and thus to revitalize, what many perceive to be outdated labor and employment laws. We focus on initiatives that re-imagine the interpretation of these laws in light of new organizing strategies and new global economic realities, all the while staying true to the existing laws on the books. Along with raising questions, and proposing new interpretations of New Deal and civil rights era gains, sometimes alt-labor’s litigation efforts are successful and lead to case law “wins.” To build its approach, the article draws from literature on litigation as a social movement strategy and provides an in-depth analysis of the ways courageous dairy workers in upstate New York have inspired innovative litigation theories and successes. Alt-labor’s achievements as a litigation catalyst are laudable — given the challenge of enacting federal legislation to address income inequality and the decline of labor union power — in the current era.
As empirical evidence of labor market concentration mounts, academics and policymakers have put forward a range of proposals to challenge or reverse its effects on workers’ wages and labor market options. Prominent among these is more aggressive review of the labor market effects of mergers as part of the Department of Justice (DOJ) and the Federal Trade Commission (FTC)’s broader merger review and approval process. This Essay argues for a novel intervention in the labor antitrust debates: because the consumer welfare focus of the antitrust agencies will prioritize consumers over workers when and if they conflict, and because the antitrust agencies lack expertise in labor markets, labor agencies should have concurrent jurisdiction to review and approve mergers that increase employer monopsony power under a “public interest” standard. The Essay makes three original contributions. First, it outlines the limitations of existing proposals for integrating labor market effects into the antitrust agencies’ merger review as a doctrinal and methodological matter. Second, it provides the first overview and evaluation of the range of interagency coordination and policy-sharing between the DOJ/FTC and outside agencies on merger review, including but not limited to the antitrust agencies’ concurrent jurisdiction with the Federal Communications Commission. This overview reveals a more complex picture of antitrust merger review that incorporates a range of standards—including a “public interest” standard—depending on the regulated industry, showing a broader administrative default of mandated expertise in industry-specific antitrust regulation. That default both contextualizes and supports the proposed extension of concurrent jurisdiction to labor agencies in merger reviews with labor market concentration effects. Finally, it provides detailed recommendations for how the labor agencies’ concurrent jurisdiction would operate to integrate their expertise into the evaluation of post-merger labor market effects.
For decades those opposed to government regulation have introduced and in some cases managed to pass so-called regulatory reform legislation. The time has come to consider what regulatory reform might look like to those supportive of government regulation. This paper considers two proposals for such reform: a bill introduced by Senator Elizabeth Warren and a "progressive framework" authored by Professors Farber, Heinzerling, and Shane. The paper describes and critiques these proposals, and while finding much to support, it also finds some significant problems. Perhaps most interesting are the differences between these two progressive proposals.
