Supreme Court Delivers Another Blow to Public Sector Unions

By: Tho Bishop

In a 5-4 decision released this morning, the Supreme Court ruled that public sector unions do not have the right to impose fees on non-union members. This ruling overturns a previous decision in Abood v. Detroit Board of Education, and is seen as a “decisive blow” to public unions.

Gary Galles offered background on the case in a June Mises Wire article:

In Janus v. AFSCME, the key issue was the Abood precedent, giving government employee unions authority to charge workers for the costs of negotiating on their behalf, but not for unwanted union political spending, which would violate their First Amendment rights. Mark Janus argued that all union expenditures are inherently political (e.g., if government union members get higher wages or better benefits, taxpayer costs will rise), which would result in banning all coerced non-member fees by government employee unions.

Unions and left-leaning groups ignored the Constitution and went all in defending Abood as a controlling precedent, requiring continuation under stare decisis. Unfortunately, Abood does not stand up as a Constitutional precedent.

The reason is the Supreme Court’s application of three-tiers of scrutiny for Constitutional rights. For some rights, notably economic rights, as in Commerce Clause cases, it applies a “rational basis” or minimal scrutiny test, requiring only that some legitimate government interest is involved, and the law has some rational relationship to that interest, which in practice is almost a rubber stamp. For First Amendment and other rights they deem more important, “strict scrutiny” is applied, requiring a compelling government interest and a law narrowly tailored to that interest, using the least restrictive means, which is a standard far more difficult to meet.

The central precedents that Abood relied on were Commerce Clause cases, addressing government’s right to regulate labor disputes, subject to minimal scrutiny. They did not address whether mandating union agency fees violated First Amendment rights, which the Supreme Court has increasingly held, that are to be subjected to strict scrutiny. Therefore, they provide no controlling precedent for Janus. The minimal scrutiny justification of advancing “labor peace” in Abood cannot meet the strict scrutiny standard for compelled speech in Janus, and does not justify stare decisis deference.

An interesting note on this case is that the plaintiffs arguments relied heavily on the work of Sylvester Petro, an early supporter of the Mises Institute and an expert in labor law. Earlier this year Mark Pulliam of Misrule of Law wrote a great tribute to Petro’s work and how he his work has grown in influence over time:

Why is Petro relatively unknown despite his prolific writing? Part of the explanation lies in academic politics; Petro was an unabashed libertarian, a proponent of Austrian School economics, and an unrelenting critic of the National Labor Relations Act (particularly as interpreted and enforced by the National Labor Relations Board). Petro believed that the ideal regulation of labor relations consisted of enforcing consensual contractual arrangements and prohibiting coercion and the use of force, in accordance with the common law. The NLRA squarely rejects this paradigm, substituting instead a regime of cartel-style “exclusive representation,” mandatory “collective bargaining,” significant impairment of employers’ contract and property rights, and legal privileges for certain union conduct.

Perhaps no area of law is so full of myths as labor law, and nobody was more committed to debunking those myths than Petro was. During Petro’s teaching career (1950-1978), such views–although popular in the business community–were decidedly out of the mainstream in legal academia. While Richard Epstein found greater acceptance for the libertarian point of view in the 1980s, along with the advent of the “law and economics” movement that validated application of free market principles to legal analysis, during the 1950s and 1960s Petro was unfashionably ahead of his time. Petro, out-of-style during the heyday of his career, was largely forgotten by an increasingly politicized professoriate after he retired. Later generations of labor law professors, at home with the premises of the NLRA, found it easier to ignore Petro than to respond to his withering critique. The current generation of progressive intellectuals ruling the academy scorns Petro as an “ideologically driven” scholar holding “radically anti-union views.”…

Petro was a pioneer in opposing the application of NLRA concepts to public-sector labor relations, and even served as counsel for the dissenting employee in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), arguing the case in the U.S. Supreme Court. It is fair to say that Petro anticipated all the problems and abuses that Abood created, which the Supreme Court has been forced to confront in a series of subsequent cases. Forty-one years later, many observers predict that the Court will finally overturn Abood in the Janus case this term. Once again, Petro was ahead of his time.

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