Supreme Court Poised to Strike-Down Mandatory Union Fees

Date: February 26, 2018

Probably the biggest case that the Supreme Court will decide this year is Janus v. American Federation of State, Municipal and County Employees. Here the Supreme Court is set to decide the issue left unresolved in Friedrichs v. California Teachers Association, wherein the high court divided 4-4 (in the wake of Justice Scalia’s passing) on the question of whether it is constitutional for a state to compel public employees to pay fees to unions. For those interested, we explain here and here why this is such an important issue for the small business community. But, in a nutshell, the problem is that mandatory union fees have made public employee unions powerful as they advocate for government spending and regulatory impositions the hurt small business.

Conventional wisdom going in to Friedrichs was that Justice Kennedy was the key swing vote. But since Kennedy agreed with us that compulsory union fees are unconstitutional, newly appointed Justice Gorsuch is now the key vote here—that is, assuming no one else changes their vote. As Amy Howe observes at SCOTUS Blog:

“After roughly an hour of sometimes testy debate in the courtroom, the outcome almost certainly hinges on the vote of the court’s newest justice, Neil Gorsuch – who did not tip his hand, opting instead to remain silent…. [And] [n]one of the eight justices who were on the court in 2016, when it deadlocked on this same question, said anything during today’s oral argument that would indicate that they had changed their minds.”

We’ll take those odds given Gorsuch’s track record in the past. But like everyone else, we’re now waiting with baited breath to see how this plays out in the end. In any event, one thing is pretty clear: Justice Kennedy seems to appreciate that everything public employee unions do is inherently political—which is a point we emphasized as amicus in response to the union’s suggestion that they only use fees collected for non-lobbying purposes.

Here is a key portion from today’s transcript:

JUSTICE KENNEDY: “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

JUSTICE KENNEDY: [Opining that public employee unions] “partner with [the State] in advocating for a greater size workforce, against privatization, against merit promotion … — for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes… [D]oesn’t it blink reality to deny that that is what’s happening here?”

That seems to confirm where Justice Kennedy stands in Janus. And it is worth noting that Kennedy forced the State of Illinois to admit that unions “will have less political influence” if denied the prerogative to compel dissenting employees to fund union activities—a point that Kennedy suggests should be decisive. At least from the tenor of that exchange, mandatory union fees are constitutionally problematic precisely because they add political strength to public employee unions to the chagrin of those employees who disagree with the spending and taxing policies that the unions support.

One other kernel worth sharing here is a gem from William Messenger of National Right to Work, representing the dissenting employees in this case. The unions suggested during their arguments that compulsory public employee union fees were essential for preserving labor peace—and ensuring that government workers would not go out on strike. Messenger aptly argued in rebuttal: “[T]he proposition that agency fees are the costs employees have to pay to prevent unions from striking, I submit is not only extremely attenuated but also would make agency fees effectively a form of protection money, the idea that the government needs to force its employees to subsidize unions or otherwise the unions will disrupt the government, and I submit that’s not an interest that this Court can accept as a compelling one for infringing on individuals’ First Amendment rights.”

We can expect a decision in Janus sometime in June, at the very end of the Supreme Court’s term. If we win this could be a game changer for small business in states currently dominated by labor unions with inordinate political power. Meanwhile, Big Labor is quaking in fear over what that may mean.

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