California's Dangerous Gambit: How AB 288 Threatens National Labor Stability and Constitutional Order

The Legislative Context and Historical Pattern

The California Legislature has developed a troubling pattern of enacting legislation driven by immediate political considerations rather than thoughtful analysis of potential consequences. This tendency has manifested repeatedly throughout the state’s history, with devastating results for Californians and sometimes for the broader national economy. The most spectacular example occurred three decades ago when legislators and then-Governor Pete Wilson overhauled electricity generation, distribution, and pricing—promising more affordable and reliable power while delivering precisely the opposite outcome: skyrocketing prices, reduced reliability, and utility insolvency.

Other examples of this legislative shortsightedness include launching California’s bullet train project without comprehensive construction or financial plans, dramatically increasing public employee pensions without adequately considering long-term costs, and similarly expanding unemployment insurance benefits without sustainable funding mechanisms. The current practice of draining emergency reserves to cover structural budget deficits—resulting from chronic revenue overestimates and spending underestimates—further demonstrates this pattern of fiscal irresponsibility that leaves the state vulnerable to economic downturns.

The Specifics of Assembly Bill 288

Assembly Bill 288 represents the latest manifestation of this problematic approach to governance. Sponsored by California labor unions and carried by Assemblymember Tina McKinnor, an Inglewood Democrat, AB 288 expands the authority of California’s Public Employment Relations Board (PERB)—which traditionally oversaw union-management relations in state and local governments and school districts—to include private sector employment.

The legislation emerges from a specific political context: early this year, President Donald Trump removed Dwynne Wilcox as chair of the National Labor Relations Board (NLRB), leaving the federal board without a quorum and unable to decide pending cases. This action is currently being contested in court. Advocates for AB 288, including Assemblymember McKinnor, argue that California needs to provide an alternative forum for workers to resolve unfair labor practices while the NLRB remains incapacitated.

During committee testimony, McKinnor articulated the rationale: “If we have no board, no quorum, no board, no justice to state workers, for state workers. We need to make sure that PERB can hear these cases, because if there’s no forum for workers to resolve unfair labor practices, then where do they stand? We can’t just leave them out in the cold because the NLRB doesn’t have a quorum.”

Constitutional and Legal Challenges

Private employer groups vigorously opposed AB 288, contending that the existence of the NLRB—even in its currently stymied state—preempts California from usurping federal authority under established constitutional principles. Generally, states can legislate on labor relations only in economic sectors not covered by federal law, which is why California previously could create the Public Employment Relations Board for government workers and the Agricultural Labor Relations Board for farm and food processing workers.

The NLRB and opposing interests are now suing in federal court, arguing that AB 288 violates federal law and represents an unconstitutional encroachment on federal jurisdiction. This legal challenge raises fundamental questions about federalism, the separation of powers, and the proper balance between state and federal authority in regulating interstate commerce and labor relations.

The Dangerous Precedent and National Implications

AB 288 represents more than just another questionable California law—it establishes a potentially disruptive and dangerous precedent for labor relations nationwide. If this legislation survives legal challenges, it would effectively open the door for every state to create its own independent system for governing private sector unionization, completely Balkanizing American labor law.

The consequences of such Balkanization would be severe and far-reaching. Blue states like California could use this precedent to virtually mandate unionization of private sector employees, building on existing policies that already require unionization for public employees and farm workers. Meanwhile, red states could move in the opposite direction, essentially prohibiting unions from organizing workers to make their states more attractive to industry and insulated from NLRB oversight—even if future Democratic administrations restore the board’s functionality.

This patchwork approach would create chaos in the national economy, with companies facing completely different labor regulations when operating across state lines. Workers’ rights would become dependent on their geographic location rather than consistent national standards. The resulting regulatory uncertainty would undermine business planning, investment decisions, and economic stability.

The Fundamental Principles at Stake

As a firm believer in constitutional governance, federalism, and the rule of law, I find AB 288 deeply troubling on multiple levels. First, it represents a blatant end-run around established constitutional principles of federal preemption in areas of traditional federal authority. The National Labor Relations Act was specifically designed to create uniform national standards for labor relations to prevent exactly this kind of state-by-state fragmentation.

Second, the legislation demonstrates the dangerous tendency of state legislatures—particularly in California—to prioritize short-term political objectives over long-term stability and constitutional integrity. Rather than working to resolve the federal impasse or challenging the administration’s actions through proper legal channels, California lawmakers have chosen to create a parallel system that threatens to destabilize the entire national framework.

Third, AB 288 potentially works against the very interests it claims to protect. While presented as pro-worker legislation, the Balkanization of labor law could ultimately disadvantage union organizing efforts by creating a regulatory environment where businesses can strategically locate operations in states with favorable labor laws. The resulting race to the bottom could undermine worker protections more broadly.

The Broader Pattern of Legislative Irresponsibility

AB 288 must be understood within California’s broader pattern of legislating without adequate consideration of consequences. From the electricity deregulation disaster to the unfunded pension liabilities that now threaten municipal budgets across the state, California has repeatedly demonstrated a willingness to embrace politically popular measures without honestly assessing their long-term implications.

This pattern reflects a deeper dysfunction in our political system—the prioritization of political signaling over responsible governance. In the case of AB 288, the legislation appears designed more as a symbolic rebuke of the Trump administration than as a genuinely thoughtful response to the NLRB’s temporary incapacitation. The fact that the legislation was rushed through without adequate consideration of its national implications or constitutional vulnerabilities further demonstrates this troubling approach.

The Path Forward: Principles Over Politics

The appropriate response to the current NLRB situation is not state-level power grabs that threaten constitutional order and economic stability, but rather a recommitment to proper legal processes and constitutional principles. The courts should resolve the dispute over President Trump’s NLRB actions, and Congress should exercise its oversight responsibilities to ensure the proper functioning of federal agencies.

California should focus on addressing its own substantial governance challenges—including its housing crisis, homelessness epidemic, structural budget problems, and failing infrastructure—rather than engaging in symbolic federal confrontations that create uncertainty for businesses and workers alike. The state’s chronic tendency to serve as a laboratory for poorly conceived policy experiments has already produced enough negative consequences for its residents without adding constitutional crises to the list.

Conclusion: Upholding Constitutional Order

AB 288 represents exactly the kind of short-sighted, politically motivated legislation that undermines constitutional governance and economic stability. While the current situation with the NLRB requires resolution, the answer is not for states to improperly seize federal authority in ways that threaten to fragment national policy and create regulatory chaos.

As someone deeply committed to constitutional principles, federalism, and the rule of law, I believe the courts should swiftly strike down this dangerous legislation and reaffirm the proper balance between state and federal authority. California’s lawmakers should focus on solving the state’s very real problems through thoughtful, constitutional means rather than engaging in political theater that threatens the foundations of our national economic system. The preservation of our constitutional order and the stability of our national economy depend on resisting such dangerous precedents, no matter how politically convenient they may seem in the moment.