Beltway Buzz, August 30, 2024

District Court Postpones ‘Parole in Place.’ This week, the U.S. District Court for the Eastern District of Texas issued a fourteen-day administrative stay of U.S. Department of Homeland Security (DHS) approvals of “parole in place” applications. In so holding, the court did not “express any ultimate conclusions about the success or likely success” of the legal challenge to the program that was filed by sixteen states with Republican governors. While the stay is in place, “aliens will still be able to apply for parole in place,” but the agency cannot issue approvals. The court also set forth an expedited briefing schedule but noted that “good cause may exist to extend this administrative stay for additional periods through mid-October.” According to an alert issued by U.S. Citizenship and Immigration Services, during the postponement, the agency will “[c]ontinue to schedule biometric appointments and capture biometrics at Application Support Centers (ASCs).”

DOL Tips Regulation Vacated. Late last week, the U.S. Court of Appeals for the Fifth Circuit vacated the U.S. Department of Labor’s (DOL) 2021 tip credit rule. The court struck down the rule because it “applies the tip credit in a manner inconsistent with the [Fair Labor Standards Act’s] text” and “is arbitrary and capricious because it draws a line for application of the tip credit based on impermissible considerations and contrary to the statutory scheme enacted by Congress.” The case is a prime example of how the Supreme Court of the United States’ recent instruction in Loper Bright—that federal courts should not defer to agency interpretations of ambiguous statutes and instead should determine for themselves the best interpretations of the ambiguities—can impact policymaking via regulation. Victoria L. Vish and Steven F. Pockrass have the details.

Federal Court Issues Partial Block of H-2A Regulations. On August 26, 2024, the U.S. District Court for the Southern District of Georgia blocked a DOL rule relating to H-2A visa holders, which went into effect on June 28, 2024, and is designed to increase “protections for temporary agricultural workers” and enhance “the Department’s capabilities to monitor program compliance and take necessary enforcement actions against program violators.” More specifically, the rule prohibits employers from retaliating or discriminating against workers who participate in “concerted activities for the purpose of mutual aid or protection” or who refuse to attend an employer-sponsored meeting relating to such activities. It also bestows Weingarten rights upon covered workers.

The court ruled that the regulation violates the National Labor Relations Act (NLRA) because it confers collective bargaining rights on agricultural workers, who are expressly excluded from the NLRA’s definition of “employee.” The court wrote, “Through this Final Rule, the DOL seeks to create law by affording some agricultural workers—H-2a workers and American workers similarly situated—the right to collectively bargain. Congress has not created that right. And in fact, the NLRA reflects Congressional intent to not create such a right.” The court’s order blocking the rule is limited to the seventeen states led by Republican governors that challenged the rule. The DOL has since filed a motion requesting that the injunction apply only to the labor provisions of the rule and that the remaining provisions continue in force.

NLRB Decision Complicates Settlement of Unfair Labor Practice Allegations. In a decision issued late last week, the National Labor Relations Board (NLRB) abandoned its decades-long practice of allowing cases to settle via consent order, whereby an administrative law judge approves a settlement under terms offered by the respondent, but without the consent of the charging party or Board’s general counsel (though the order is subject to appeal and review by the Board). Three Democratic Board members determined that allowing cases to settle via consent orders is contrary to the Board’s rules and regulations, “creates administrative challenges and inefficiencies, tends to interfere with the General Counsel’s statutory prosecutorial authority, and, most importantly, fails to effectuate the policies of the Act.” Republican member Marvin Kaplan dissented, writing:

It is damaging to the Agency’s credibility to, on the one hand, plead for additional resources from the American people while, on the other, change Board policies to divert those resources to be spent on needlessly litigating cases where the Respondent offered to provide either an eminently reasonable settlement or, even, a full remedy. Worse, the misallocation of resources that is the unavoidable result of my colleagues’ decision today needlessly reduces the amount of available resources for the Board to use actually protecting American workers.

Chair Lauren McFerran, in the majority, approved the use of consent orders in a Board case issued in 2016.

NLRB/DOL to Assist Antitrust Investigations. On August 28, 2024, the NLRB general counsel, DOL, Federal Trade Commission (FTC), and the U.S. Department of Justice (DOJ) Antitrust Division (ATR) announced a memorandum of understanding (MOU) “to strengthen worker protections and fair competition by collaborating on labor issues in antitrust merger investigations.” Pursuant to the memo, the agencies commit “to working together to ensure all relevant and appropriate information and expertise can be used to facilitate the Antitrust Agencies’ ability to assess the potential impacts of mergers and acquisitions on labor markets.” This includes the NLRB and the DOL providing “training to appropriate personnel from the Antitrust Agencies” and meeting with those agencies to provide “technical assistance, as appropriate, on labor and employment law matters in merger review, including in the resolution of labor market merger investigations.” The Board has entered into similar MOUs with the FTC, Occupational Safety and Health Administration, and the DOJ.

The 24th Amendment. On August 27, 1962, the U.S. Congress passed the 24th Amendment to the U.S. Constitution, outlawing poll taxes in federal elections. The late 19th and early 20th centuries saw a rise in the adoption of poll taxes, as former Confederate states sought to prohibit Black Americans from voting and ensure Democratic Party hegemony without technically running afoul of the 15th Amendment. In 1937, the Supreme Court, in Breedlove v. Suttles, unanimously upheld the constitutionality of poll taxes. Still, the issue persisted for decades until then Senator Spessard Holland (D-FL), who was a signatory to the 1956 “Southern Manifesto” condemning the Supreme Court’s decision in Brown v. Board of Education, introduced the amendment in Congress in 1962. (Holland continued to oppose civil rights legislation, but he was motivated to abolish the poll tax because he viewed it as wealth discrimination and corrupt.) On January 23, 1964, South Dakota became the final state to ratify the amendment, and the 24th Amendment became part of the U.S. Constitution. Arizona, Arkansas, Georgia, Louisiana, Oklahoma, South Carolina, and Wyoming have not ratified the 24th Amendment. The 24th Amendment does not apply to state and local elections, but in Harper v. Virginia Board of Elections (1966), the Supreme Court ruled that poll taxes are unconstitutional at every level of government.