News & Analysis


mark-janus-supreme-court.jpgMark Janus outside the Supreme Court building during a February hearing. Photo: Leah Mill/Reuters 

On June 27, the Supreme Court handed down a decision in Janus v. AFSCME authored by Justice Samuel Alito. Advocates of Big Labor were quick to decry the ruling as a union-busting exercise in judicial activism, while most of the political right lauded it as a refreshing win for workers’ rights. But in today’s charged political climate, both claims might reasonably be viewed with skepticism by those in the center. What did the ruling actually hold, and what will be its consequences for America?

The case centers on the legality of agency fees in public-sector unions. Public-sector unions represent government workers, such as public-school teachers, police officers, and firemen, and frequently operate in what is referred to as an agency shop. Membership in the union is voluntary in such an arrangement, but workers who choose not to join are still required to pay a fee, generally lower than a full membership fee, to the union. The fee is called an agency fee.

Public-sector unions justify these fees on the grounds that all workers benefit from the union’s services, such as wage negotiation, and should therefore be required to pay for those services. The union is required by law to represent all employees, not just its members. Therefore, the argument goes, if fees were not mandatory, workers could opt out of the fees en masse, becoming “free riders” and receiving union benefits without paying. That would cripple the union, advocates say. Logically, the argument makes sense. It’s the reason we have mandatory taxes to pay for public services. But the core question in this case is not whether agency fees are a “good thing” from a policy standpoint. The question is whether they violate the First Amendment.

In certain situations, monetary payments fall within the freedom of speech. Consider if you were forced, as a condition of government employment, to donate a portion of your paycheck to the NRA or Planned Parenthood, or if you were prohibited from doing so. Would that not be akin to a restriction on your ability to personally speak in favor of your political positions? The Supreme Court has generally subscribed to that notion. It’s not a new phenomenon brought about by Trump-appointed Justice Gorsuch. In fact, it dates at least to the time of the founding, when Thomas Jefferson wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” The Supreme Court extended this logic to the subsidization of a different entity:the public-sector union.

1aed2ba535314e24afa21fc6eb7466d8Supreme Court Justice Samuel Alito, who wrote the majority opinion in favor of Janus. Photo: Associated Press

The court first had to determine whether Janus was indeed paying for someone else’s political interests. The union had contended that the agency fee only covered non-political expenses, such as costs of negotiating, whereas full membership dues include the union’s expenses related to political contributions. To the extent it is relevant public sector unions overwhelmingly contribute to politicians of a certain party that shall remain nameless.

The Court examined that claim, and found that the intricacies of union accounting rendered it burdensome to ever determine what money was going where. The majority found that the “line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision”. Obviously, donations to a political campaign are political speech, but what about “social and recreational activities”? Or even the collective bargaining activities of the union itself? After all, lobbying by public-sector unions does have a substantial impact on public policy. In the Supreme Court’s view, the line is simply too blurred to be used in a Constitutional inquiry.

Even if it could be drawn, a second question arises: that of the inherent fungibility of money. Money isn’t serialized dollar by dollar in typical financial transactions. There’s no way to track particular dollars on their path from a worker’s wallet to the union’s expense accounts while ensuring that they avoid anything political in nature. Money is liquid. A payment to the union is just that: a payment to the union. It’s not a payment to one particular expense account. It’s usable by the union for any expense. Payment to one non-political account frees up “member” dollars for political expenditures. Indeed, counsel for the union in this case conceded that abolishing agency fees would render unions less politically powerful, to which the now-retired Justice Kennedy replied, “Isn’t that the end of this case?”.  

It is important to note that, in mainstream jurisprudence, even if policies appear on their face to violate a Constitutional right, they can be upheld if they meet what’s referred to as “heightened scrutiny”, which generally entails the law furthering a compelling governmental interest in a narrowly tailored fashion. The compelling interests the union and the state proffered in this case were twofold: the state’s interest in maintaining “labor peace”, i.e. the ease with which collective bargaining can proceed when only one union represents the employees, and the union’s interest in preventing the “free rider” problem mentioned earlier.

afscme-strike-berkeley-2013A 2013 AFCME strike in Berkeley, California. Photo: Beck Diefenbach/Reuters

In analyzing the first interest, the Court looked to recent history. More than half of all states in the United States currently prohibit agency fees in the context of public-sector unions, and they do not seem to have suffered conflicts between warring unions. That fact was evidence enough for the majority to conclude that the practice of agency fees was not sufficiently “narrowly tailored” to satisfy heightened scrutiny.

In regards to the second, the Court again looked to the many so-called “right to work” states, where agency fees are unlawful. Unions survive to this day in those states, which suggested to Alito and the other Justices in the majority that the fees were not narrowly tailored, even if the free rider problem might be construed as a compelling state interest.

In any case, consider the scenario I laid out earlier. Consider if you were required to donate to the NRA or to Planned Parenthood as a condition of public employment. Would the organization’s suggestion that you, the employee, benefit from their lobbying (in the form of gun rights or abortion rights, take your pick), and should therefore be forced to pay in order to avoid becoming a free rider? Most would probably think not. Again, the Court’s history reflects a consistent approach to this question.

While the Supreme Court’s analysis drew the conclusion that the deduction of agency fees from non-union members’ paychecks violated the First Amendment, Alito went one step further. For reasons known only to the nine Justices, the majority delivered a pre-emptive strike against policies that could foreseeably be used by states and unions to dilute the ruling’s effects: opt-out provisions. In some states, while agency fees are technically voluntary, the worker has them deducted from his or her paycheck by default. By following a certain procedure, one can opt out of the fees, but that must be done on the worker’s own accord. The Court may have worried that, once the ruling was handed down, highly burdensome requirements might be instated to discourage opting out of the agency fees. After all, the fees would then be technically voluntary, even if practically a fact of life. The question could have later reached the Court as to whether the requirements were excessively burdensome. Now, excessive burden inquiries in all sorts of Constitutional questions are highly subjective, so the Court seems to have sought to avoid them altogether in a highly politicized issue such as this. Presumably for that reason, Alito wrote in no uncertain terms that the fees must be issued on an opt-in basis, i.e., the worker must “affirmatively consent” to paying them. The question may be legitimately raised as to whether that issue was really before the Court and whether it was proper to include that provision of the holding, but unless the decision is someday overruled, the provision stands as law.

Independent of the Court’s legal analysis, a substantial obstacle to this ruling, namely its own 1977 decision, Abood v. Detroit Board of Education, stood in the way of the majority’s resolution of the case. There, the Court had unanimously upheld agency fees in similar case circumstances as were present in Janus. Where a prior decision constitutes precedent in a matter, as Abood did here, the Court tends to adhere to a principle known as stare decisis. That doctrine lays out the justifications that tend to be appropriate when overruling a prior decision. Typically, the Court will only overrule a prior decision when very good reasons to do so present themselves. Here, the Court found that at the time Abood was decided, the state interests in the context of heightened scrutiny were not well understood. In the decades since, the Court found, it was realized that agency fees were not strictly necessary to accomplish the stated aims of labor peace and avoiding the “free rider” problem. Further, millions of workers nationwide would continue to have agency fees involuntarily extracted from their paychecks, were the decision left to stand. In the face of the Court’s analysis finding that such constitutes a continual violation of First Amendment rights, the majority decided that the reasons to abandon Abood outweighed the reasons for maintaining it. Abood was therefore overruled, and no longer stands as law.

Whether or not you agree with the political implications of this ruling, it is important to be able to separate those opinions from your fair-minded interpretation of this country’s Constitution. The Court didn’t hold that private-sector unions weren’t allowed to continue functioning; it didn’t hold that public-sector unions weren’t allowed to continue functioning; it didn’t hold that unions may not collect dues; it didn’t hold that unions may not be politically active. All it said was that non-consenting public workers may not be legally compelled to pay money to politically-active organizations, and that any payments they do make must be of the worker’s own free will.

If you’re curious, I would encourage you to peruse the original decision here.


Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.