Addicted to Coke

I cover the Coke v. Long Island Care at Home case here quite a bit.  Some main-stream media coverage is available in today's paper here.  At long last, the Supreme Court is set to hear oral argument on April 16, 2007.

I was just thinking about some of the ramifications of the Court's having punted the issue back to the Second Circuit rather than hearing the case the first time it came before the Court in 2005.  Here's a potentially interesting one from an institutionalist perspective: Congress was fully Republican in 2005 so if the Court had agreed with Coke back then that the DOL regulations were inconsistent with the 1974 FLSA, the doomsday scenario portrayed by the health care industry and the goverment (at least their prospective prognostications rather than the potential back pay ramifications) could have easily been averted.  Republicans simply could have amended the FLSA and explicitly passed a bill making clear that home health care aids employed by third parties need not be paid minimum wage and overtime.  No one could doubt that George W. Bush would have signed that bill into law, given that he completely tanked Clinton's effort to get the regulation changed to have the home health care aids covered rather than exempted by the FLSA.  Even conservative justices could have seen this congressional response on the horizon and would not necessarily have felt the need to overturn the Second Circuit decision.   It would have given them the freedom to issue a clean rule of law decision on the merits.

Of course, I am assuming that Coke has the better "rule of law" arguments.  Almost all of the strong arguments on behalf of the DOL reg (and virtually all of the amicus briefs coming to the defense of the reg) are economic policy arguments that really have no place in deciding the real issues before the Court: What did Congress intend in 1974 and was the DOL's interpretation afforded the proper degree of deference about what Congress intended then?  Even the latter question itself requires a construction of what Congress intended because the degree of deference a court must give the DOL depends on the degree of delegation Congress intended to afford the DOL in its rule-making powers.  The Court will also have to assess, under Mead, whether the DOL had an intention in 1975 to promulgate the reg at issue under its delegated authority or whether it intended the reg merely to be an "interpretation" that lay outside its delegated authority.  Whatever one thinks about the merits of these questions, it should be relatively apparent that they do not involve an assessment of what the economic impact would be in 2007 should the reg be struck down.   

It is worth noting, I think, that institutional incentives are somewhat different now that the Court is deciding this case in 2007 rather than 2005.  The other institutional actors are now quite differently aligned -- which may have effects on how justices perform their roles.  Essentially, the Court's ruling will not be capable of being overturned, as it was in 2005: If Coke wins at the Supreme Court, the Democratic Congress will have no interest in revisiting the decision since we can assume that Democrats generally favor Coke's position.  If Coke loses, the 2007 Democratic Congress would be unlikely to be able to change the decision because no legislative action could withstand a veto by President Bush. 

So what would the institutionalist predict?  I would guess that the balance of powers in 2007 may render conservatives less likely to vote with Coke even if they were otherwise sympathetic to her "rule of law" arguments.  That is, of course, bad news for Evelyn Coke.

[There is one more point to make from an institutionalist perspective that may moot my analysis above:  Conservatives could vote with Coke but use reasoning that would leave open to Bush -- as the ultimate policy-maker of the DOL -- a second bite at the apple.  Even if Coke wins at the Supreme Court, the DOL could quickly use a proper notice and comment procedure to re-issue the reg, invoking their full legislative authority.  Fashioning the new reg as a "legislative regulation" would likely entitle it to full Chevron  deference in the courts.  Although there is an argument that Coke could still have the reg struck even under Chevron's more deferential review, virtually everyone agrees that it would be substantially more difficult for her to win under that standard, which is why so much hinges on the Court's view about whether the Second Circuit properly afforded the DOL only Skidmore deference under Mead's reasoning.]