Today's Wall Street Journal features an Op-Ed by law professor Richard Epstein which argues that both the card-check and mandatory arbitration provisions of EFCA are unconstitutional. 

Surely, Professor Epstein's theory on free speech will be tested if card-check remains an element of the legislation, but we believe it will face an uphill climb.  To be certain, EFCA is designed to allow unions to curtail, even eliminate, the ability of employees to hear dissenting voices during union organizing efforts.  The courts are likely, however, to conclude that: (1) it is the union -- not a government actor -- who is curtailing the employer's ability to speak; and (2) employers still retain the right -- albeit at the peril of more significant penalties for improper speech -- to talk to employees about unions at any time regardless of whether they are aware organizing is going on.

Professor Epstein's analysis of EFCA's interest arbitration provisions are far more compelling in our opinion.  Various provisions of the Constitution, including the Takings Clause of the Fifth Amendment, present challenges for EFCA's scheme to allow government arbitrators to impose contract terms upon private parties.  A portion of Epstein's astute view:

The government-chosen panel could well impose terms that might cripple the firm competitively. Consider that the takings clause surely prevents the government from forcing any person to buy real estate for twice its market value from a seller. That same principle applies to this labor law: No government should be able to force a firm to hire labor at $50 per hour when the company is not willing to pay half that much.

Worse, the EFCA also permits the government arbitrator to strip the employer of all its standard management prerogatives on everything from subcontracting out to promotion policy. By flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the takings clause.

We echo the Professor's conclusion, and hope that his theories needn't ever be tested in a court of law.