The Constitutionality of the EFCA

As an economist, I write about how policy proposals would affect economic agents and if those affects are good or bad for society. The veiw that constitutional limits on the power of government and the executive augment economic growth appears to be the dominant position of economists. I generally feel comfortable talking about what kind of relationships between economic agents a constitution should encourage or forbid, but I have little knowledge about how courts interpret laws to determine constitutionality.

I have written about the Employee Free Choice Act (EFCA); I don't like it. It should not be constitutional. Should not does not mean isn't. For readers interested in the law, I have linked to several article expressing legal opinions. I found the first article in the Wall Street Journal today. I did a quick Google search and found several attorneys expressing opinions against but only one for on the first thirty references. This probably says more to about who writes on the Internet than it does about majority legal opinion.

Rivkin and Casey write that the EFCA is unconstitutional in "Why the Card Check in Unconsitutinal," Wall Street Journal, March 30, 2009.

Epstein writes that the EFCA is unconstitutional in "The Employee Free Choice Act Is Unconstitutional," Wall Street Journal, December 19, 2008.

Janson writes a brief reply in "Card Check Is Not Unconstitutional," Wall Street Journal, December 26, 2008.

Gottesman writes a longer reply in "The Improbable Claim That EFCA Is Unconstitutional," ACSBlog, February 4, 2009, and Epstein (and others) replies in the same blog as comments.