LUBBOCK, Texas (Legal Newsline) - A federal judge has criticized the Biden Administration for its practice of using the rulemaking process to change the way businesses operate, saying it has stolen the policy-making power of Congress.
Biden and his agency chiefs have had no problem issuing final rules that affect businesses nationwide. Agencies have banned noncompete clauses in employment contracts, prohibited late fees of more than $8 on credit card payments and sought to have more independent contractors be considered employees - all without approval from Congress.
These measures have led to various court challenges by companies and trade groups that say the agencies are overstepping their authority. Judge Sam Cummings, on the bench in Lubbock, Texas, agreed on June 24.
The case involves changes to the Davis-Bacon Act, which governs wages paid to workers on federal contracts. The Department of Labor wants to extend protections originally given to mechanics and labors to include workers associated with projects who are not "directly on the site of the work," like truck drivers.
"Defendants engaged in egregious violations of Article II, section 3 of the Constitution, because rather than taking care to faithfully execute the DBA, Defendants instead usurped Congress' law-making power and attempted substantive amendments to the DBA," Judge Cummings wrote.
"Presidents and their agencies act (beyond their authority) and do violence to the Constitution when they attempt to unilaterally amend Acts of Congress to suit their policy choices."
The Associated General Contractors of America, its Texas chapter, the Lubbock Chamber of Commerce and construction company J. Lee Milligan, Inc., filed suit in November against the Labor Department, which is headed by acting secretary Julie Su.
Su has never received confirmation from the U.S. Senate but has acted as secretary during Biden's tenure in office.
Her agency's final rule changing the 1931 Davis-Bacon Act took effect in October, leading the plaintiffs to sue two week later. The DBA requires minimum prevailing wages for laborers and mechanics working on federal contracts worth more than $2,000.
The law specifically says it applies only to "mechanics and laborers employed directly on the site of the work." Decades after its passage, Su and the Labor Department decided it didn't go far enough.
Judge Cummings wrote the plaintiffs have shown a likelihood of success on their challenge and granted their request for a preliminary injunction.
The original terms of the DBA are "simple and unambiguous" in that it only applies to mechanics and labors working directly on site, Cummings wrote.
"Expanding the DBA to apply to trucking impermissibly conflicts with the statute, which defines its coverage and is limited to 'construction, alteration, or repair, including painting and decorating, of public buildings and public works,'" Cummings wrote.
"Truck drivers are not de facto 'mechanics and labors employed directly on the site of the work.'"