Legal and Regulatory

From ABC: In Defense of Free Enterprise

An overview of recent federal regulatory policies affecting the construction industry—and how Associated Builders and Contractors is pushing back on the ones that most disrupt fair and open competition.
By Ben Brubeck
June 4, 2024
Topics
Legal and Regulatory

In the final year of a presidential term, especially when neither political party holds a trifecta and legislative victories are scarce, it is not uncommon for the White House to aggressively advance its policy agenda by testing the limits of executive power via new executive orders and regulations.

Indeed, the Biden administration has issued hundreds of executive orders and regulations advancing hot-button political priorities, including curbing greenhouse gases, pushing for federal student loan forgiveness, increasing domestic manufacturing and controlling America’s energy production.

BATTLE ZONES

Of specific interest to ABC members and the construction industry, the administration has issued dozens of new regulations increasing the cost of construction, artificially exacerbating the construction industry’s skilled labor shortage and disrupting fair and open competition for taxpayer-funded construction projects. Some regulations give union firms the edge in winning public-works construction contracts and make it much easier for workers to unionize.

Implementing radical policy changes through executive actions—without meaningful congressional input—is a tested strategy to shore up support from key constituencies and interest groups in an election year, with little practical downside for sitting presidents. This approach boosts reelection campaigns and voter enthusiasm by delivering concrete examples of presidential action and allegiance to party orthodoxy. It also provides fodder for campaign speeches, enhanced media coverage and strong appeals to donors and grassroots networks in support of candidates and their political party. It has led to a rapid expansion of presidential powers that can effectively only be checked by the judicial branch of government.

White House policy gurus and federal agency bureaucrats have little incentive to deliver modest and common-sense reforms that will help the greater good while limiting collateral regulatory damage to small businesses and industries seeking economic certainty and market stability to expand and create jobs. Instead, regulators are emboldened to implement disruptive policy change that will excite key political constituencies.

FIGHTING BACK

Fortunately, ABC general counsel Maury Baskin of Littler Mendelson P.C.—working closely with ABC’s legal and advocacy team, 68 chapters and 23,000 members—has been fighting for fair and open competition by leading the business community’s efforts to challenge radical new Biden administration regulations.

In March, ABC filed a federal lawsuit against a Biden administration executive order mandating anti-competitive and costly project labor agreements on federal construction projects of $35 million or more. In November, ABC challenged the U.S. Department of Labor’s sweeping overhaul of federal regulations pertaining to Davis-Bacon Act prevailing wage requirements on federal and federally assisted construction projects. ABC is also part of a coalition litigating the DOL’s controversial independent contractor rule.

Likewise, ABC is mounting legal challenges to rulemakings and decisions overturning decades of labor law in favor of union special interests by the Biden-appointee-controlled National Labor Relations Board. In March, an ABC lawsuit successfully vacated the NLRB’s impractical joint-employer rule, and ABC is working hard to reverse the NLRB’s recent decisions creating labor-friendly rules for union elections in the workplace and limitations on employer free speech.

Now ABC is contemplating legal action against new DOL regulations on overtime, overhauling the apprenticeship system and the OSHA walkaround rule as well as other concerning Biden administration regulations targeting federal contractors.

As evidenced by dozens of other ABC-led legal victories striking down harmful Obama and Biden administration regulations, litigation aimed at blocking radical White House policies is often a costly but necessary last resort to protect the rule of law and free enterprise.

by Ben Brubeck
Ben Brubeck is a recognized leader in state and federal labor and procurement issues, Brubeck has extensive experience with project labor agreements (PLAs), union corporate campaigns, federal contracting requirements, and Davis-Bacon and prevailing wage laws, as well as other key construction related labor matters. Brubeck is a frequent contributor to www.TheTruthAboutPLAs.com, an educational website and blog. Get the latest news from TheTruthAboutPLAs.com on Twitter (@TruthAboutPLAs) and Facebook (www.facebook.com/TheTruthAboutPLAs).

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