not only ridiculous, but unconstitutional

That's Richard Epstein's assessment of the "Employee Free Choice Act" in this essay in the WSJ...

Of course, the fact that it's ridiculous and unconstitutional may mean absolutely NOTHING to Congress and the President.

Along with the auto bailout (and the response to it), the EFCA represents one of two big moments for unions early in Obama's administration. Will this end up as an op for unions-- for strengthening. Or will these two ridiculous proposals be seen as overplaying their hand-- and result in a kick in the shorts equivalent to the over-reach in the air-traffic controllers strike in 1981?

A top priority of the incoming Democratic Congress and Obama administration is the misnamed Employee Free Choice Act. The EFCA, as is well known, introduces a card-check procedure that allows a union to gain recognition without an election by secret ballot. Thereafter a government arbitration panel can impose, without judicial review, all the terms of an initial two-year collective "agreement" if the parties cannot negotiate an agreement within 130 days.

It is commonly supposed that economic regulation is immune to constitutional challenge since the New Deal. That's not the case with this labor law.

Consider card check and the First Amendment....To be sure, the employer's free-speech rights are limited under the NLRA....

The mandatory arbitration provisions of the EFCA are also constitutionally suspect. True, the takings clause of the Fifth Amendment today is quite lax when the state just restricts how an owner can use his property. But it imposes a firm duty to compensate someone whose property is occupied pursuant to a government decree....

Let's hope that the Democratic Congress will moot this analysis -- by refusing to jump head first into a labor-law abyss that promises to wreck labor markets in times of acute national economic distress. The Employee Free Choice Act should not be passed, and it should be struck down by the Supreme Court if it is.