Amicus Curiae Brief — South Carolina State Ports Authority, et al., Petitioners v. National Labor Relations Board, et al.

No. 23-325

IN THE

Supreme Court of the United States

SOUTH CAROLINA STATE PORTS AUTHORITY, AND STATE

OF SOUTH CAROLINA,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, ET AL.,

Respondents.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICI CURIAE SENATORS

LINDSEY GRAHAM AND TIM SCOTT IN

SUPPORT OF PETITION FOR CERTIORARI

ANTHONY R. JADICK

MICHAEL H. MCGINLEY

DECHERT LLP

Counsel of Record

Cira Centre

JUSTIN W. AIMONETTI

DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104 1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

Counsel for Amici Curiae

October 30, 2023

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ................................................................ 3

ARGUMENT ................................................................ 5

I.

The Decision Below Undermines The Purpose

Behind The Secondary-Boycott Ban..................... 5

II. This Court Should Grant Review To Vindicate

The Plain Meaning Of The NLRA And To

Alleviate The Economic Harm The Decision

Below Has Unleashed ......................................... 10

CONCLUSION .......................................................... 16

ii

TABLE OF AUTHORITIES

Cases

Connell Constr. Co. v. Plumbers & Steamfitters

Loc. Union No. 100, 421 U.S. 616 (1975) ................. 7

Duplex Printing Press Co. v. Deering,

254 U.S. 443 (1921)............................................... 5, 6

Loc. 1976, United Brotherhood of Carpenters &

Joiners of Am., A.F.L. v. NLRB,

357 U.S. 93 (1958)..................................................... 7

Loewe v. Lawlor,

208 U.S. 274 (1908)................................................... 5

Nat’l Woodwork Mfrs. Ass’n v. NLRB,

386 U.S. 612 (1967)........................................... 5, 6, 7

NLRB v. Int’l Longshoremen’s Ass’n,

AFL-CIO, 447 U.S. 490 (1980) ............................. 8, 9

Statutes

29 U.S.C. § 158(b)(4)(ii)(A) .......................................... 6

29 U.S.C. § 158(b)(4)(ii)(B) .......................................... 6

29 U.S.C. § 158(3) ........................................................ 6

Other Authorities

Simeon Alder et al., Labor Market Conflict and the

Decline of the Rust Belt, J. OF POL. ECON.

(forthcoming 2023), https://bit.ly/3sbAQWs .... 11, 12

Brief of Amicus Curiae Governor Henry

McMaster at 5, South Carolina State Ports

Authority v. NLRB, 75 F.4th 368 (2023) (No. 231059) ........................................................................ 15

iii

James Chen, Rust Belt: Definition, Why It’s Called

That, List of States, INVESTOPEDIA (Nov. 9,

2022), https://bit.ly/3s5uXKm ................................ 11

Lloyd Kenward, The Decline of the US Steel

Industry: Why Competitiveness Fell Against

Foreign Steelmakers, IMF: FIN. & DEV.,

December 1987, https://bit.ly/4729Ya2 .................. 10

Press Release, South Carolina State Ports

Authority, Charleston Has The Deepest Harbor

On The East Coast at 52 Feet (Dec. 5, 2022),

https://bit.ly/3Fymr9E ............................................ 14

Press Release, South Carolina State Ports

Authority, Congress Authorizes Charleston

Harbor Deepening Project (Dec. 10, 2016),

https://bit.ly/3QvLWPj ............................................ 15

Press Release, South Carolina State Ports

Authority, SC Ports Opens State-of-the-Art Hugh

K. Leatherman Terminal (Apr. 9, 2021),

https://bit.ly/474hUaR ............................................ 14

South Carolina State Ports Authority Finance

Department, Annual Comprehensive Financial

Report: For Fiscal Years Ended June 30, 2022

and 2021 (S.C. Ports), https://bit.ly/497Gvx8 ........ 15

U.S. Army Corps of Engineers, Appendix C:

Charleston Harbor Post 45, Charleston, South

Carolina,

Economics

(May

2015),

https://bit.ly/45FGkGw ........................................... 16

Joseph C. Von Nessen, Economic Impact Of The

South Carolina Ports Authority, Statewide and

Regional

Analysis

(Oct.

2023),

https://bit.ly/3FQF7St ............................................. 13

1

INTEREST OF AMICI CURIAE 1

Senator Lindsey Graham is the Senior United

States Senator from the State of South Carolina.

Senator Graham has served South Carolina as an

elected official for over thirty years. He began his

career as a commissioned officer in the Judge

Advocate General “JAG” Corps of the U.S. Air Force,

later joining the South Carolina Air National Guard

and the U.S. Air Force Reserve. In 1992, Senator

Graham won election as a member of the South

Carolina State House. He was later elected to the U.S.

House of Representatives, and for the past twenty

years has served South Carolina in the U.S. Senate.

Senator Graham is currently the Ranking Member of

the Senate Judiciary Committee, following a term as

its Chairman during the 116th Congress.

Senator Tim Scott has served the people of South

Carolina in the United States Senate since 2013.

Following a career as a business owner and time as a

local elected official in Charleston County, Senator

Scott served in the South Carolina State House and

the U.S. House of Representatives. Following a 2013

appointment, Senator Scott won election to the United

States Senate in 2014. He currently serves as

Pursuant to Rule 37.6, amici curiae affirm that no counsel for

a party authored this brief in whole or in part and that no person

other than amici curiae or their counsel made a monetary

contribution to its preparation or submission. Amici curiae

further affirm that counsel of record for all parties received notice

of amici curiae’s intent to file this brief at least 10 days before its

due date.

1

2

Ranking Member of the United States Senate

Committee on Banking, Housing, and Urban Affairs.

Senator Graham and Senator Scott’s interest in

this case is twofold. First, and particularly in light of

Senator Graham’s leadership on the Judiciary

Committee, they are intent on ensuring that our

Article III courts protect the faithful execution of our

laws, consistent with their plain meaning. The courts

must serve as a bulwark against a bloated and often

activist administrative state. When administrative

agencies adopt strained or outright implausible legal

interpretations, our constitutional structure is

impeded. In such instances, the duty of the judicial

branch is to correct the overreach.

Second, in their role as elected officials, amici work

to promote the economic success of South Carolina and

the Nation. The South Carolina Ports, in conjunction

with the State’s manufacturing sector, contribute

significantly to the State and National economy.

Senator Graham has worked to secure federal funding

supportive of the South Carolina Ports, such as the

Army Corps of Engineers’ deepening of the Charleston

Harbor. The Ports act as an economic multiplier,

creating jobs and increasing wages. South Carolina is

a global competitor for industry, aided by its

geographic location and driven by its sound economic

policies.

The number of foreign manufacturers,

including BMW, Volvo, and Mercedes-Benz, who have

located plants in the State showcase South Carolina’s

economic prowess. Amici have a strong interest in

protecting and strengthening this success.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

In South Carolina, labor responsibilities at the

ports are handled by both unionized dockworkers and

State employees. A total of 270 State employees

operate the cranes, while over 2,000 laborers

represented by the International Longshoremen’s

Association (“ILA”) perform the other longshoreman

work, such as loading and unloading container ships.

This hybrid model has proven effective, efficient, and

economically efficacious.

The dockworkers’ union, however, is not satisfied

with having 88% of the work. It wants all of it. In its

attempt to seize the 270 crane operator positions, the

union cannot directly pressure the South Carolina

State Ports Authority (“Ports”). This is because the

union itself does not have a collective bargaining

agreement (or any contractual relationship) with the

Ports. Instead, unionized dockworkers are employees

of third-party companies, which are contracted to

perform longshoreman work.

With no direct

contractual relationship, the union has resorted to

what’s known as a secondary boycott. It has coerced

third-party employers to boycott the new Leatherman

Terminal.

The secondary boycott has had a

devastating effect, causing the Ports’ new $1.5 billion

Leatherman Terminal to sit largely idle.

The union’s actions are unlawful.

In 1947

Congress banned secondary boycotts. It did so to

prevent union power grabs like this one. Seeking to

vindicate its legal rights and put an end to the

economically devastating secondary boycott, the Ports

filed suit before the National Labor Relations Board

4

(“NLRB”). An administrative law judge held that the

union’s actions constituted a textbook (and therefore

unlawful) secondary boycott. But the NLRB then

overturned that ruling, relying upon a fundamentally

flawed expansion of what’s known as the workpreservation doctrine.

And the Fourth Circuit

affirmed.

The work-preservation doctrine operates as a

defense to the secondary-boycott ban. It permits

boycott activity that seeks to preserve existing union

work. Applying that defense here is facially incorrect.

Union laborers have never operated the cranes at the

South Carolina Ports. In fact, union laborers have

never operated cranes at any of the Southeastern

ports, to wit, those in North Carolina, South Carolina

and Georgia. Because the purpose of the union’s

boycott is to obtain new work—operating the cranes at

the Leatherman Terminal—it is unlawful. And that

unlawful activity has grounded work largely to a halt

at the Leatherman Terminal.

History speaks to the potentially devastating

consequences of such work stoppages. Economists

who have studied the decline of U.S. industry in the

latter-part of the 20th Century have concluded that

labor conflict—work stoppages, such as strikes or

boycotts—accounted for approximately half of the

decline in the Rust Belt’s manufacturing industry.

Quantitative data shows that more labor strife

corresponds with less job growth. And more union

overreach

corresponds

with

less

industrial

investment. Amici are thus concerned about the risks

that this unlawful boycott and the decision below pose

5

to economic growth and industrial investment in

South Carolina.

The Fourth Circuit failed to vindicate the

statutory directive banning secondary boycotts. And it

failed to protect the South Carolina Ports from an

aggressive and unlawful union power grab. This

Court should grant certiorari and reverse.

ARGUMENT

I.

The Decision Below Undermines The

Purpose Behind The Secondary-Boycott

Ban.

The secondary-boycott ban was born of experience

with different power balances between industry and

labor. In the early twentieth century, courts began

enjoining certain labor-related boycotts under the

Sherman Act. See Nat’l Woodwork Mfrs. Ass’n v.

NLRB, 386 U.S. 612, 620 & n.6 (1967) (citing inter alia

Loewe v. Lawlor, 208 U.S. 274 (1908)). Congress

became concerned that these injunctions were being

overused, stymying the rights of workers. It thus

enacted Section 20 of the Clayton Act in 1914, which

limited the use of Sherman Act injunctions in labor

disputes. Id. at 620–621.

Unfortunately, unions abused this legal protection.

In the years following the Clayton Act’s passage, the

International Association of Machinists embarked on

“an elaborate scheme to coerce and restrain neutral

customers” of its bargaining opponent. Id. at 621

(citing Duplex Printing Press Co. v. Deering, 254 U.S.

443, 461 (1921)). Litigation over the aggressive

behavior led this Court to hold that Section 20

protected only boycotts “directed against an employer

6

by his own employees.” Id. The Duplex decision was

the seed of the secondary-boycott ban: it held that

“‘primary’ but not ‘secondary’ pressures were excepted

from the antitrust laws.” Nat’l Woodwork, 386 U.S. at

622.

Following the 1921 Duplex decision, Congress

decided to do away with the primary/secondary

distinction in 1932, passing the Norris-LaGuardia Act.

But what resulted was a new series of union abuses of

Sherman Act immunity. See id. at 622–23. Therefore,

acting upon decades of data and experience, Congress

in 1947 enacted the Taft Hartley Act, which contained

the earliest form of the secondary-boycott ban that is

now codified in Section 8(b)(4) of the NLRA. 2 Id. at

623–24.

Senator Robert Taft, one of the Act’s

namesakes, stated that the provision’s purpose was to

“make[] it unlawful to resort to a secondary boycott to

injure the business of a third person who is wholly

unconcerned in the disagreement between an

2

The relevant portion of Section 8(b) provides:

It shall be an unfair labor practice for a labor

organization or its agents . . . to threaten, coerce,

or restrain any person engaged in commerce or in

an industry affecting commerce, where . . . an

object thereof is . . . forcing or requiring any

person . . . to cease doing business with any other

person . . . .

29 U.S.C. § 158(b)(4)(ii)(B).

Section 8(e), which was added in 1959 by the Landrum-Griffin

Act, also prohibits both unions and employers from contracting

or agreeing to “cease doing business with any other person.” Id.

§ 158(e). The Act likewise prohibits unions from coercing

employers to execute such contracts. Id. § 158(b)(4)(ii)(A).

7

employer and his employees.”

omitted). 3

Id. at 624 (citation

More fine-tuning occurred over the following

decade, shoring up the secondary-boycott ban’s core

purpose. In 1958, this Court held that, as written,

Section 8(b) did not stop unions from using contractual

“hot cargo” provisions.

See Loc. 1976, United

Brotherhood of Carpenters & Joiners of Am., A.F.L. v.

NLRB, 357 U.S. 93 (1958). Hot cargo clauses are

contractual restrictions prohibiting third-party

employers from doing business with other entities that

either do not use union labor or that are under boycott.

These clauses had become a common tactic to

circumvent Section 8(b). Congress corrected this

defect through the Landrum-Griffin Act of 1959,

where it amended the secondary-boycott ban “to close

various loopholes,” including the addition of Section

8(e). See Nat’l Woodwork, 386 U.S. at 633–34.

Congress chose to ban secondary boycotts because

of their “significant adverse effects on the market and

on consumers.” Connell Constr. Co. v. Plumbers &

Steamfitters Loc. Union No. 100, 421 U.S. 616, 624

(1975) (explaining that). At every step, preventing

anticompetitive negotiating tactics, and the collateral

damage that flows therefrom, has been the purpose

A Senate committee report put a fine point on the purpose of

the legislation, stating that under the Taft Hartley Act, “it would

not be lawful for a union to engage in strike against employer A

for the purpose of forcing that employer to cease doing business

with employer B; nor would it be lawful for a union to boycott

employer A because employer A uses or otherwise deals in the

goods of or does business with employer B (with whom the union

has a dispute).” Id. at 625 (citation omitted).

3

8

and effect of the secondary-boycott ban. The NLRB

and the Fourth Circuit’s decisions below frustrate this

purpose by expanding what is known as the workpreservation

doctrine—a

judicially-engineered

exception to the ban.

Under longstanding precedent, to establish a workpreservation defense, a union must satisfy two

elements: First, the union’s activity “must have as its

objective the preservation of work traditionally

performed by employees represented by the union.”

NLRB v. Int’l Longshoremen’s Ass’n, AFL-CIO, 447

U.S. 490, 504 (1980).

“Second, the contracting

employer must have the power to give the employees

the work in question . . . .” Id. The defense is meant

to suss out the “object” of a union’s activities. The

NLRA “protect[s] . . . the purpose of preserving for the

contracting employees themselves work traditionally

done by them.” Id. (citation omitted). It follows that

a union can affect a secondary boycott if it can

demonstrate that the purpose of that boycott is to

preserve its own members’ work.

The panel below (channeling the NLRB)

misapplied each prong, stretching the defense beyond

recognition. First, it drastically mischaracterized the

relevant scope of the work. The panel majority

concluded that, because ILA workers typically

perform the relevant work “at East and Gulf ports,”

meaning across the entire East Coast, the ILA’s

boycott at the Leatherman Terminal was aimed at the

preservation of ILA members’ work, rather than at the

acquisition of new work. Pet.App.17a. But as Judge

Niemeyer wrote in dissent, this ignores that the

relevant bargaining unit is not the whole ILA but only

9

Local 1422. Indeed, while some East Coast ports, such

as the Port of Baltimore, utilize union labor for crane

operation, the Ports of Charleston, Wilmington, and

Savannah have instead always used the hybrid model.

Pet.App.34a–35a.

It is wrong to look at work

coastwide when several of the ports therein have

historically utilized a different model. A union is not

“preserving” work when it is attempting to obtain

work it has never done.

The second prong—sometimes called the “right of

control” test, Int’l Longshoremen’s Ass’n, 447 U.S. at

504—requires that the union’s efforts be “directed at

the employer with the right to control the work,”

Pet.App.42a (citations and emphasis omitted). Here,

the union targeted the Maritime Alliance and its

members. But those employers have no right to

control the work of the crane-operating employees of

the Ports. In holding otherwise, the Fourth Circuit

endorsed the union’s fanciful argument that the

carriers can effectively “control” work by choosing

where their ships call.

Pet.App.47a–48a.

Put

differently, this faulty legal fiction holds that a union’s

unlawful secondary boycott is shielded by the workpreservation defense because the targeted secondary

employer could choose to take its business elsewhere.

In summary, the panel stacked the deck by

selecting the entire East and Gulf Coast as the

relevant comparator to the local union’s work. Its

sweeping reliance on historical changes in the

industry, rather than concrete present-day examples,

has no principled boundaries. And the panel’s holding

that a third party “controls” the target employer’s

workforce by deciding whether to do business with the

10

employer risks swallowing the secondary-boycott rule

altogether. The object of a secondary boycott is to force

a third party to exercise its otherwise-free bargaining

power to harm the employer. How would a ban on

such boycotts accomplish anything if the very power to

harm the employer indirectly is a defense to the ban?

The NLRB and Fourth Circuit decisions thus

undermine the pro-competitive principles that

Congress designed the secondary-boycott ban to

protect. This Court should thus grant review of this

important question and reverse.

II.

This Court Should Grant Review To

Vindicate The Plain Meaning Of The NLRA

And To Alleviate The Economic Harm The

Decision Below Has Unleashed.

The history of twentieth century America is one of

boom and bust. Following the roaring 20s, the Great

Depression sent shockwaves throughout the Nation.

It took the manufacturing boom necessitated by World

War II to bring the Country’s economy back to life.

Economic expansion ensued, with the U.S. leading the

world in steel production through the end of the

1960s. 4 This manufacturing dominance did not last.

Rather, U.S. steel production accounted for a mere

11% of the world’s steel by 1985. Id. The 1970s and

1980s saw the rapid decline of manufacturing,

Lloyd Kenward, The Decline of the US Steel Industry: Why

Competitiveness Fell Against Foreign Steelmakers, IMF: FIN. &

DEV., December 1987 at 30, https://bit.ly/4729Ya2.

4

11

particularly in the Northeast and Midwest, earning

those regions the “Rust Belt” moniker. 5

Labor strife had much to do with this catastrophic

economic downturn. A forthcoming article from the

University of Chicago Press’ Journal of Political

Economy puts it bluntly: “Quantitatively, labor

conflict accounts for around half of the decline in the

Rust Belt’s share of manufacturing employment.” 6 In

their peer-reviewed article Labor Market Conflict and

the Decline of the Rust Belt, professors Simeon Alder,

David Lagakos, and Lee Ohanian explain that “the

Rust Belt’s decline was driven by labor market

conflict,” which “manifested itself in strikes and wage

premia.” Id. at 40 (emphasis added). Other factors,

such as the rise of foreign competition, played “a more

modest role quantitatively.” Id.

The strikes and wage premia, in turn, “reduced

investment in the region’s main industries” which “led

to the movement of manufacturing employment out of

the Rust Belt and into the rest of the country.” Id.

Labor conflict declined only “following several legal

and political shifts that substantially reduced union

bargaining power in the 1980s.” Id. (emphasis added).

That led to “higher rates of productivity growth and

the region’s stabilization, albeit at a much lower level

than before.” Id.

5 See James Chen, Rust Belt: Definition, Why It’s Called That,

(Nov.

9,

2022),

List

of

States,

INVESTOPEDIA

https://bit.ly/3s5uXKm.

Simeon Alder et al., Labor Market Conflict and the Decline of

the Rust Belt, J. OF POL. ECON. (forthcoming 2023) (manuscript at

1) (emphasis added), https://bit.ly/3sbAQWs.

6

12

The lesson drawn from that quantitative analysis

is that work stoppages restrain economic resilience

and job growth. As the authors explain, “there is a

strong negative association at the state industry level

between rates of work stoppages and employment

growth between 1950 and 2000.” Id. at 2. In

particular, outsized union bargaining power cripples

investment: “a higher union bargaining weight leads

to lower average rates of investment and productivity

growth by Rust Belt firms relative to firms in the rest

of the country.” Id. at 2.

As discussed above, Congress banned secondary

boycotts in 1947 to protect free trade. History

demonstrates the wisdom of that policy decision. Even

without recourse to secondary boycotts, strained

relations and vast union power contributed to

significant work stoppages resulting from primary

boycotts. Quantitative analysis established that these

work stoppages went a long way toward creating the

Rust Belt and the decline of investment in the region.

The intractable nature of the relationship between

management and union leaders—treating each other

as adversaries rather than as partners—harms the

economy. See Alder at 40. Yet, as explained, a balance

has existed in South Carolina and other southeastern

ports through the adoption of a hybrid model.

Petitioner SCSPA employs 270 state employees to

“operate state-owned lift equipment to load and

unload container ships that call at” the Port’s

Terminals. Pet.App.57a & 114a. ILA-represented

employees—over 2,000 to be exact—perform the

remainder of longshore work at the Ports. Id. This

13

hybrid model has worked well, balancing competing

interests and spurring economic growth.

But the union is not satisfied with this model. It

has therefore disrupted the Ports’ important work by

orchestrating this secondary boycott. As the Petition

explains, the southeastern ports “are in the crosshairs of the unions,” and “the assumptions on which

they have been doing business are threatened.”

Pet.30. Union aggressiveness to acquire new work

cannot be overstated. For example, ILWU—the west

coast counterpart of the ILA—“drove port operator

ICTSI out of business in Portland in order to acquire

just two reefer jobs there.” Pet.30 (emphasis added).

Congress struck a balance between labor and

industry with the passage of the Taft Hartley Act in

1947, and amendments thereto in 1959. A proper

application of that legal regime is necessary to protect

the economic success of South Carolina, especially its

export-oriented manufacturing industry, which has

been the linchpin of the State’s economic development

over the last decade. 7

As explained by other amici, the South Carolina

Ports represent an economic engine for all 46 counties

of the State, generating around $86.7 billion in

revenue each year. Id. This impact translates to

260,020 jobs and $17.6 billion in labor income. Id. As

a boon to local manufacturing and U.S. exports, up to

73.2% of all cargo exported through the South

Carolina Ports originates from companies located in

Joseph C. Von Nessen, Economic Impact Of The South

Carolina Ports Authority, Statewide and Regional Analysis at 4

(Oct. 2023), https://bit.ly/3FQF7St [hereinafter Impact Study].

7

14

South Carolina. Id. The direct and indirect economic

benefits to citizens of the State are indisputable. One

in nine jobs in the State are linked to the Ports. Id. In

turn, through direct and indirect economic activity,

the Ports bring in approximately $1.5 billion in tax

revenue for the State annually. Id. More state tax

revenue means more critical infrastructure, better

schools, and better hospitals. And the advanced

manufacturing jobs that correspond with the Ports

results in higher wages. In 2022, the annual wages in

the state manufacturing sector were about 22.2%

higher than the U.S. state average over the same

period. See id. at 26 ($67,514 compared to $55,254).

State and federal tax dollars have made

significant contributions to the success of the South

Carolina Ports. Planning started over twenty years

ago to develop the Leatherman Terminal, which

finally opened in March 2021. 8 South Carolina

invested over $1.5 billion in the terminal. See Pet.31.

Moreover, the Army Corps of Engineers recently

completed a $580 million harbor renovation project—

deepening the harbor and strengthening the area’s

cargo-processing abilities. 9

Indeed, at 52 feet,

Charleston now has the deepest harbor on the East

Coast. Id. This project moved forward after the

Senate passed the Water Infrastructure Improvement

8 Press Release, South Carolina State Ports Authority, SC

Ports Opens State-of-the-Art Hugh K. Leatherman Terminal (Apr.

9, 2021), https://bit.ly/474hUaR.

Press Release, South Carolina State Ports Authority,

Charleston Has The Deepest Harbor On The East Coast at 52 Feet

(Dec. 5, 2022), https://bit.ly/3Fymr9E.

9

15

for the Nation Act (“WIIN”) in 2016. 10 Following the

passage of WIIN, federal appropriations authorized

approximately $246 million in federal funds for the

project. 11 South Carolina fronted a significant portion

of money to speed completion of the harbor deepening

project, setting aside about $300 million. 12

These investments of taxpayer dollars have clear

intended benefits. As South Carolina Governor Henry

McMaster has explained, among the many benefits

specific to the Leatherman Terminal (which currently

sits largely idle) is that it provides “near-dock rail . . .

connecting the [Leatherman Terminal] to Class I

railroads operated by CSX Transportation and

Norfolk Southern.” 13 Corresponding infrastructure

improvements will also reduce highway congestion in

the area. Id. Likewise, as recognized in a 2015 Army

Corps of Engineers study, the deepening of the harbor

will enable carriers “to load Post-Panamax vessels

more efficiently and thereby reduce transiting costs.

In the future, these carriers are anticipated to replace

smaller less efficient vessels with the larger more

Press Release, South Carolina State Ports Authority,

Congress Authorizes Charleston Harbor Deepening Project (Dec.

10, 2016), https://bit.ly/3QvLWPj.

10

South Carolina State Ports Authority Finance

Department, Annual Comprehensive Financial Report: For

Fiscal Years Ended June 30, 2022 and 2021 at 6 (S.C. Ports),

https://bit.ly/497Gvx8.

11

12

Supra note 9.

Brief of Amicus Curiae Governor Henry McMaster at 5,

South Carolina State Ports Authority v. NLRB, 75 F.4th 368

(2023) (No. 23-1059).

13

16

efficient vessels on East Coast service lanes that will

call on Charleston Harbor.” 14

But these significant economic and environmental

benefits have not been realized. No new jobs have

been created, and no additional state tax revenue has

been generated, which limits investments into the

region’s infrastructure, schools, and hospitals. This

result is exactly what the secondary-boycott ban was

meant to stop, and it is the consequence of an Article

III court permitting an administrative agency to run

roughshod over Congress’ judgment.

There is no doubting this case’s importance. It is

important for the people of South Carolina. It is

important to ensure consistent application of the law

nationwide. And it is important to vindicate the

federal constitutional structure, so that the People

remain governed by a nation of laws, rather than ruled

by administrative fiat.

CONCLUSION

For the foregoing reasons, amici curiae respectfully

urge this Court to grant the petition for certiorari.

U.S. Army Corps of Engineers, Appendix C: Charleston

Harbor Post 45, Charleston, South Carolina, Economics at 55

(May 2015), https://bit.ly/45FGkGw.

14

17

Respectfully submitted,

ANTHONY R. JADICK

DECHERT LLP

Cira Centre

2929 Arch Street

Philadelphia, PA 19104

MICHAEL H. MCGINLEY

Counsel of Record

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

Counsel for Amici Curiae

October 30, 2023