The long period of labor peace to which Americans are so accustomed is the product of that rarest of phenomena: wise congressional compromise. But the balance struck by Congress in the mid-1930s has been threatened by the Department of Labor (DOL). Not content with Congress’s solutions, DOL has sought to dramatically rewrite labor law through a recent rule that would extend many labor protections far beyond the boundaries set by Congress. However, the attempt was swiftly halted by a federal judge in Georgia in Georgia Fruit and Vegetable Growers Association (GFVGA) v. DOL.

The history of labor unrest in the U.S. is complicated and occasionally violent. While labor strife in the U.S. never approached anything like the tumult in other countries, it was marked by occasional bloodshed in the late 19th and early 20th centuries. Clashes like the Railroad Riots (1877) and the Battle of Homestead (1892) wound up turning Pittsburgh into a warzone, leaving bodies of strikers and Pinkertons dead in American streets. These dreadful surges of violence continued well into the 1930s.

Today, labor violence is largely unknown, primarily because of congressional enactments that managed to quell labor unrest. Much of what we recognize in American labor comes from the Wagner Act of 1935. It gave us the National Labor Relations Board, collective bargaining, and secret ballots, and it set a baseline for unfair labor practices. The Wagner Act—in its various iterations—has yielded “the most peaceful labor market in living memory”—a fitting tribute to its 89-year legacy.

Naturally, a great deal of legislative give-and-take went into achieving this successful and enduring piece of legislation. One such compromise is found at the beginning, where it specifically excludes agricultural workers from its definition of a covered “employee.” Yet DOL recently sought to, on its own, redefine the term and thus extend the scope of the law.

Through a rule entitled “Improving Protections for Workers in Temporary Agricultural Employment in the United States,” DOL extended many of the Wagner Act’s protections to migrant farm workers who enter the country under the H-2A program. The rule afforded far-ranging rights, including the rights to self-organize, to engage in collective and concerted labor activities, to boycott, and to picket. These are many of the same protections set forth by law—not rule—under the Wagner Act. Yet the Act excludes agricultural workers from its definition of employee, and H-2A workers are agricultural workers. Still more, by aiming primarily at the H-2A program, the rule was designed to extend to foreign workers protections greater than those enjoyed by their American counterparts.

No elected official ever voted for this change. If they had, American voters would have communicated their likely disapproval to their elected representatives and held them accountable at the ballot box. The whole process of representative government, however, did not occur here precisely because this was a rule, not a law.

But just before the rule’s effective date, a district court in the Southern District of Georgia enjoined its enforcement. The court determined that DOL had far overstepped its constitutional authority because the rule applied to agricultural workers, and all agricultural workers are excluded under the Wagner Act. The rule, therefore, represented an attempt to “unconstitutionally create law” by conferring on H-2A workers a right not recognized by Congress.

This federal court ruling is an example of how dramatically the administrative law landscape has shifted following the demise of Chevron deference in last term’s Loper Bright v. Raimondo. DOL argued that its interpretation was reasonable and not prohibited by the Wagner Act because the rule didn’t directly state that it was extending beyond the statute. But now that the court was not required to defer to the agency’s interpretation of the statute, it was easily able to recognize that the rule’s language “mirrors” that of the Wagner Act, and so it found that DOL was covertly amending the Wagner Act.

But the ruling also highlights one of the important questions left open in Loper Bright. Loper Bright recognized that Congress sometimes gives agencies broad authority to implement regulations using discretionary delegations. Think of statutes authorizing agencies to promulgate “reasonable” or “necessary” regulations. The Supreme Court said in such cases the best reading of the statute may be that agencies have authority to exercise their own discretion in fashioning regulations. But it is unclear what role courts are to play when reviewing discretionary delegations like these, other than to police the outer boundaries.

That law allows DOL to establish criteria by which employers certify that American agricultural workers won’t be harmed by the issuance of H-2A visas. The growers had argued that the connection from this authority to the regulation is highly attenuated. If a simple directive to fashion regulations that will ensure that H-2A visas do not “adversely affect” American agricultural workers allows DOL to recreate the same elaborate rubric that required intense congressional focus in the 1930s, then it confers a great deal of lawmaking power through an unremarkable certification requirement. If that’s the case, the only limit on DOL’s discretion is that it can’t directly contravene a congressional act. This ruling still allows the agency to lay claim to a great deal of power with questionable authority.

In the future, other agencies may point to the Supreme Court’s dicta surrounding discretionary delegation as an escape hatch that restores much of the authority they seemed to have lost in Loper Bright. Here, it is hard to imagine Congress meant to confer such great power through an innocuous certification provision. And discretionary delegations to agencies on tangential but supportive matters like the H-2A certification requirement are not uncommon. Thus, if courts allow agencies to point to any far-reaching discretionary grant to gain authority over an entire program or statutory scheme, then they are right back where they were prior to Loper Bright.

Agencies are often tempted by the thought that they can do a better job legislating than Congress. The role of the courts is to remind them of their place. That’s what the court did by invalidating DOL’s rule. The case, of course, is still far from its destination. For now, the settlements negotiated under the Wagner Act remain off limits for DOL bureaucrats. While the wisdom of excluding agricultural workers can be debated, Congress made that decision, and DOL executes laws passed by Congress, even if DOL views the Wagner Act as overdue for an update. If Congress decides to profoundly expand labor law protections to the primary benefit of foreign laborers, it can expect to hear from American voters. That process of accountability cannot be circumvented by a restless agency.

The separation of powers undoubtedly slows things down for government officials. It requires debate, deliberation, negotiation, and compromise. Efficiency is not its selling point. Respect for self-governance is. Any effort to improve upon the Wagner Act will have to be done the old-fashioned way, however slow—through the elected representatives of the American people.

Disclosure: The authors represent GFVGA and Miles Berry Farm in the challenge to the rule discussed here.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].