At a March 29th news conference, New York Attorney General Schneiderman announced a coalition of attorneys general from fifteen states, the District of Columbia, and the Virgin Islands – all Democrats-- investigating fossil-fuel companies in order “to save the planet.” Schneiderman said the group was acting because Washington refuses to do so.
Two weeks later, Schneiderman announced another coalition of attorneys general from seven states and the District of Columbia, who had “sent letters to a number of large retail companies … seek[ing] information and documents related to the companies’ use of on-call shifts.”
On-call shifts, as Schneiderman explains them, occur when “Employees… must call their employer, typically an hour or two before a scheduled shift, to find out if they will be assigned to work that day.” The unhappy attorneys general condemned the practice as “unfair to workers.” Presumably, labor unions agree.
These “Generals’” (a term often applied to state attorneys general, as well as to the U.S. Attorney General) are waging ideological war, also known as “lawfare,” against legal, corporate practices. The practices they disapprove of involve environmental, labor, and -- in the future-- other activities denounced by the ideological Left.
These Generals have likely given little or no thought to the Constitution, and if they have, are ignoring what it says.
The Constitution’s Framers worried that powerful forces could pull the federal system towards either of two opposing dangers. A centralized tyranny was one.
The more immediate danger, however, was that the existing American confederacy of states would fragment and break apart the newly conceived Union. So the Constitution displaced it and added two provisions related to coalitions among states, one prohibiting formal confederacies and the other limiting the ability of states to enter agreements among themselves.
Article I, Section 10 of the Constitution prohibited states from “enter[ing] any Treaty, Alliance, or Confederation.” Nevertheless, it took a bloody Civil War to defeat the slave-holding Confederacy and its attempt to secede from the Union.
But Article I, Section 10 also provides: “No State shall, without the consent of Congress… enter into Agreement or Compact with another State.”
As the Framers recognized, states creating power blocs through agreements external to, and unregulated by, Congress would jeopardize the Union. They could see from history that` confederations that did not dismember eventually centralized because one or more of their members possessed enough power to dominate other members.
Today, Germany is moving in that direction as the de facto leader of the confederation that is the European Union.
To be sure, the Supreme Court has not strictly followed the language forbidding agreements and compacts in Article I, Section 10: it has permitted certain agreements between states lacking consent from Congress.
In Virginia v Tennessee (1893), the Supreme Court said that, as to some agreements, the federal government would have “no possible objection” because they do not “encroach upon or impair the supremacy of the United States.”
The words of Schneiderman and his cohorts do not seem to fall within the allowable category.
At his March 29th news conference, Schneiderman was clear that the coalition wanted to investigate fossil-fuel companies in order “to save the planet” because the Congress refuses to take action.
This is not a situation where a coalition of states sues the federal government for infringing state power, a frequent practice and part of the constitutional process. Rather, this coalition of states contemplates suing and possibly prosecuting private parties operating in many states because the federal government will not act.
Such extra-constitutional actions infringe federal power.
While not as grand a project as “saving the planet,” Schneiderman’s announcement on April 13 is also problematic. Nowhere does the press release say that “on-call shifts” are illegal. Rather, in their judgment, “On-call shifts are not a business necessity,” because “many retailers … no longer use this unjust method.”
This group of states is attempting to abolish a particular labor practice from all states. They undoubtedly have calculated that the targeted retailers are more likely to give in because the costs of resisting eight state government will be very high.
Thus, without new legislation in the states or from the federal government, nine public officials may be able effectively to outlaw a disliked, but legal, practice.
The Constitution abolished the original American Confederation in large part to end the economic warfare among the states which was threatening the Union. Preserving the Union required a bloody Civil War to defeat the slave-holding Confederacy.
Through agreements and coalitions, lacking congressional consent, these state Generals are creating nascent confederations.
The last thing our Union needs is an ideologically driven economic war waged by some states against others. The Framers of our Constitution have already told us that.
John S. Baker, Jr. is Professor Emeritus at the Louisiana State University Law Center.