Monday, June 11, 2007

Wrong Issue Addressed in Caretaker Agency Case

Today's decision by the USSC to uphold the Department of Labor's interpretation of a 1974 Fair Labor Standards Amendment lacks the right frame of reference. The Department's interpretation of the Fair Standards Amendment is that it exempted caretakers contracted in the home from minimum wage and maximum hour rules of the Fair Labor Standards Act of 1938. What this essentially means is that this subset of caretakers are subject to the whims of the labor agency contracting them. Caretakers can be paid anything and can be required to work as many hours, without being paid overtime by the contracting agency.

A caretaker who was contracted to the home sued her employment agency for refusing to pay her for her overtime work. This raises, what should have been the appropriate frame for viewing the case: due process of law. Although this was not the question before the Court when they decided this case, the interpretation of the law comes into conflict with this basic right guaranteed by the 14th Amendment. Section 1 of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The caretaker lost her compensation for the hours she worked overtime and thus was deprived of property that was rightfully hers. While the Court finds that the process of creating the law was within reason and that the Department of Labor could interpret the FLSA amendment in such a way as to exclude caretakers from the regulations imposed by the FLSA, the law itself should not be constitutionally sound. It is really that question which the USSC failed to answer in its opinion and should have been the framing of the issue in the case.

Life Appointment of Justices

Life appointment of the justices sitting on the USSC--as long as they behave well--has raised many concerns. The concerns range from certain presidents having more control over the political ideology of the Court to justices staying on the job far after their health has compromised their capacity to do the job.

The justice which currently comes to mind is CJ Rehnquist. Although he was clearly battling (and losing the battle) against thyroid cancer he remained steadfast in his desire to stay on the Court till his dying day. Concerns over the health and well-being of the justice have prompted some scholars such as James E. DiTullio and John B. Schochet to call for a constitutional amendment: give justices 18 year non-renewable terms on the Court instead of life appointment.

In their article:
Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Non-renewable Eighteen Year Terms argue that this amendment will be beneficial since it will reduce the influence of one president on the Court, the influence of age on the choice of nominees (who may lack the appropriate experience if too young) and the desire of justices to stay on the Court past their prime.