Peter J. Wallison's Judicial Fortitude offers a brief and accessible introduction to the struggle to control the administrative state.
The Supreme Court is slowly but surely demonstrating, over a series of cases, that the First Amendment cannot plausibly be squared with public sector unions’ court-awarded power to require payments from non-members. The Court’s 1977 decision granting unions that extraordinary power, Abood v. Detroit Board of Education, is an anomaly that should be overturned next year in Friedrichs v. California Teachers Association. Michael Toth makes these points well in his lead essay, as do Daniel DiSalvo, my Manhattan Institute colleague, in his response and in his terrific new book, and John Eastman in his own response.
Alongside their comprehensive critiques, I would offer two further points. First, it is important to understand public sector unions not simply as a stand-alone issue, but in the context of other attempts to wield governmental power outside of the normal channels of accountable, republican (with a small “r”) forms. And second, the Court’s careful evaluation of this issue, through a step-by-step, case-by-case approach, exemplifies the best kind of judicial restraint.
Modern labor-relations law was born of the New Deal. Indeed, the National Industrial Recovery Act, which the Supreme Court famously struck down in Schechter Poultry (1935), contained a subsection guaranteeing the right of collective bargaining. When the Court voided the NIRA, Congress answered by passing more comprehensive legislation: the Wagner Act of 1935.
The Wagner Act, and the National Labor Relations Board (NLRB) that it created, reflected the New Deal’s overwhelming tendency toward federalizing issues previously left to the states or left alone. FDR had touched on these themes several months earlier, in his sixth fireside chat:
The relations between the employer and the employed between the owners of aggregated capital and the units of organized labor, between the small producer, the small trader, the consumer, and the great transporting and manufacturing and distributing agencies, all present new questions for the solution of which the old reliance upon the free action of individual wills appear quite inadequate.
At the same time, while labor-management relations were being brought within the purview of the federal government, Congress wanted to create at least the appearance of policymaking by a neutral board of experts rather than by a political department. Thus the Wagner Act committed the issue to a new “independent commission,” even over the initial objections of President Roosevelt and Labor Secretary Frances Perkins, who had wanted the NLRB to be housed within the Labor Department and subject at least somewhat to its authority.
Later, when unionization was allowed to reach the public sector, it was again very much reflective of the times. President Kennedy signed Executive Order 10988, pursuant to his New Frontier agenda of empowering government even more in ordinary American life. Meanwhile, when New York City Mayor Robert Wagner, Jr. (son and namesake of the Wagner Act’s architect, the Democratic Senator from New York) introduced collective bargaining to the public sector in 1958, he did it not just to promote unionism per se, but also to establish a structural alternative to the corrupt Tammany Hall politics he was trying to kill off. (DiSalvo flags this in Government Against Itself as does Hadley Arkes in his 1981 The Philosopher in the City.)
In the same way, the problems that we see today in and around public sector unions should be viewed in the light of Progressives’ inventiveness in asserting governmental power through means outside of the normal forms of governance and administrative law. In our era, the examples are well-known—perhaps none more than President Obama’s aggressive use of “waivers” or other forms of nonenforcement to achieve his policy preferences on immigration, marijuana, or other issues. But there are many others, as Michael Greve and Ashley Parrish have documented.
One of the most important, and one that has received increasing attention, is the Environmental Protection Agency’s use of “sue-and-settle” to effectively lock in environmental activists’ pro-regulatory agenda. Activists sue the EPA for an alleged failure to regulate; the EPA immediately concedes the issue; and the consent decree that the EPA and the plaintiffs sign in the case creates a judicially enforceable mechanism for accelerating the regulatory process despite any deleterious impacts that it may have on the resulting rulemaking process.
Public sector unions reflect the same tendencies. Negotiations between the unions and their public employers determine public spending on those areas of government—and not just in the short-term, but (thanks to pensions) in the long-term. Indeed, as the Court explains in Harris v. Quinn, the “core issues” of public sector union agreements, “such as wages, pensions, and benefits, are “important political issues,” such that there is no effective difference between labor negotiations and outright lobbying.
DiSalvo highlights this. So does David Skeel, in a recent issue of National Affairs. Writing on “the meaning of Detroit,” Skeel notes that “the interests of public unions are often closely aligned with those of the governmental officials who sit on the other side of the bargaining table,” and thus the agreements reached by the two sides are less the product of negotiation than of cooperation—a cooperative effort that is cemented by legally binding agreements.
And these agreements affect more than just the working conditions of that particular union. As DiSalvo explains in his book, the commitment of public resources to the unionized employees
may cause the redirection of state and local spending away from more traditional priorities like road maintenance, libraries, parks, and public transport. With taxes hard to raise, revenue scarce, and spending commitments locked in on pensions and healthcare, money must be taken from other programs.
As Fred Siegel bluntly puts it, public sector unions are nothing less than “the new Tammany Hall,” a “vanguard movement within liberalism” dedicated “wholly to lobbying for a larger government and the taxes and debt to pay for it,” to which extraordinary legal tools are given, for the attainment of gains that are all but permanent. As with Tammany Hall, the corruption lies not in the policies they pursue so much as the dubious and damaging means by which they pursue them. (When Mayor Wagner established unionization to help cripple Tammany, he did so not just for the sake of good government, but also to consolidate and reinforce his office’s political power, with the municipal workers as his power base.)
James Madison stressed in Federalist No. 58 that Congress’s “power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” The same is no less true of state legislatures. But when a state’s policies and expenditures are taken outside of the normal appropriations process by that state’s public unions, the effect is to gut a crucial constitutional means of democratic accountability—again, a restructuring of government to suit the aims of a particular political group.
As for forcing non-members to financially support these unions’ policy-laden negotiations, a majority of Supreme Court justice appears to recognize that such compelled contributions raise grave First Amendment problems. The Court’s decision in Abood, glibly authorizing the unions to command such contributions, may not be long for this world; the Court’s analysis in Harris makes that much plain.
Such a conclusion—if that is where the Court is headed—would be a significant constitutional victory, but I am also struck by the way that the Court has reached this point. It has done so only after a series of decisions peeling away initial layers of the public sector union problem, one by one, until finally reaching the core constitutional question. Michael Toth touches on this in his conclusion by way of reference to Edmund Burke, arguing that jurisprudential “anomalies” cannot forever stand at odds against our constitutional foundations—Abood is untenable against “the well-established presumptions and prescriptions of the First Amendment,” he writes.
So long as we are casting this in Burkean terms, I would suggest a slightly different perspective in addition to Toth’s. The Court’s careful, restrained approach, over several years and cases, is what strikes me as loosely “Burkean,” if one’s notion of Burkeanism counsels for the pursuit change slowly and incrementally, not swiftly and radically, one case at a time.
Abood itself was not “Burkean” at all, at least not in that sense. Rather, as Justice Powell put it in his separate opinion, the Court declared a “sweeping limitation of First Amendment rights . . . unsupported by either precedent or reason.” The majority not only awarded new powers to the unions at the expense of individual workers; it also imposed new structural burdens on the dissenting workers—“for the first time in a First Amendment case, simply revers[ing] this principle” that an individual’s First Amendment rights are presumptively protected, not, as Abood arranged it, presumptively unprotected.
And precisely because Abood was such a sweeping decision, it failed to grapple seriously with the vast practical problems inherent in allowing unions to command payment for politicized collective bargaining while purporting to rule out such forced payment for other political activities. Justice Rehnquist stressed some of these practical difficulties in his separate opinion, as did Powell. Simply put, Abood created a logistical quagmire, either intentionally or ignorantly. (Justice Alito and the Harris majority suggest that the Abood justices created these problems by accident—they “did not foresee the practical problems that would face objective nonmembers.” That seems rather generous.)
Given the myriad practical problems , to say nothing of the overarching First Amendment problems, one would hardly have faulted reformers if they had tried to nullify the Abood precedent in one fell swoop, in the first relevant case reaching the Supreme Court. Instead, a “Burkean” path was taken. First, as Justice Alito’s majority notes in Harris v. Quinn, the Court was forced to “struggle repeatedly” with the problem of distinguishing “chargeable” bargaining costs from “non-chargeable” political costs. It struggled to maintain Abood’s flawed edifice. But after three and a half decades this became simply untenable.
When Knox reached the Supreme Court in 2012, on the question of whether unions could put the burden on non-members to opt out of political charges, rather than reversing the burden with an opt-in system, the petitioners did not ask the Court to reverse Abood outright. Rather, they argued their case within the contours of Abood, asking the Court (as they put it in their cert reply brief) to actually vindicate a “core mandate” of Abood by giving non-members a fair opportunity to avoid the fee on First Amendment grounds.
Two years later, when Harris v. Quinn reached the Court, the justices had yet another opportunity to nullify Abood outright. And in this case, the petitioners actually did ask that Abood be vacated, before falling back to the position of seeking to curb Abood’s extension to contexts in which workers were not clearly public sector workers.
The Court openly referred to Abood’s fundamental problems, as evidenced by the majority opinion’s extended discussion of the precedent’s flaws. But the majority stopped short of overruling it, saving that question for another day. The holding was simply that Illinois was asking the Court to go beyond what had been approved in Abood: “the State of Illinois now asks us to approve a very substantial expansion of Abood’s reach” to apply it to employees not obviously part of the public sector. “Because of Abood’s questionable foundations, and because the personal assistants are quite different from full-fledged public employees, we refuse to extend Abood to the new situation now before us” (Emphasis added). Simply put, the Court found that Abood was “not controlling” on the facts at hand, and thus the Court was not required to confront Abood directly.
Now we come to Friedrichs v. California Teachers Association, which the Court is set to take up soon. Here the question is squarely presented (as Eastman explains at length). The justices have raced to this point, and their deliberate approach has allowed all the more deliberation by the public. We have been debating these issues for years; we have seen the Court peel away specific problems surrounding Abood without yet reaching the core. With that core issue now plainly at hand, the basic issues become truly unavoidable. If a majority concludes in Friedrichs that the time has come to overturn Abood, no one will be able to accuse the Court acting rashly—by contrast to the original Abood justices.
And we do well to recall that, on other difficult constitutional questions, the Supreme Court has proceeded in a similar way. Professor Richard Re has cleverly and convincingly written of “the doctrine of one last chance,” by which the Court takes care to avoid constitutional questions where reasonably possible, deciding preliminary cases on narrower grounds and leaving the core constitutional claim for another day.
Take the recent Voting Rights Act cases, for example. In Northwest Austin Municipal Utility District No. 1 v. Holder (2009), the Court had an opportunity to strike down the Act’s controversial Section 5 pre-clearance requirement, but instead the Chief Justice opted to decide the case on much narrower grounds, by avoiding the constitutional claim and deciding the case on a statutory-interpretation claim. Because this approach was narrower, it was also much more broadly favored on the Court, by a vote of 8 to 1 (with Thomas dissenting because he wanted to reach the constitutional claim).
Four years later, in Shelby County v. Holder (2013), the issue returned to the Court, and there was no alternative basis for decision, and so only then did the Court’s five-justice majority, once again led by Chief Justice Roberts, strike down Section 5 (or, more specifically, it struck down Section 4b, which effectively rendered Section 5 moot).
Justice Ginsburg, who dissented in Shelby, later complained of the way that later developments unfolded; she regretted joining the Chief’s opinion, saying that that she “should have distanced herself from the majority opinion’s language” in the earlier case. But that is a rather odd regret. She is suggesting that she should have downplayed the Act’s obvious problems in the first case, not because she disagreed with the Chief’s recognition of those problems at the time, but rather because acknowledging them undermined her attempt in the later case to argue for the policy in spite of those problems. One would prefer that a judge actually take to heart the “inconvenient facts” presented in the first case, and take them as an opportunity to question her broader position, not wish those facts away.
One imagines Edmund Burke describing Ginsburg’s comment as the triumph of ideology over reality—the very opposite of the prudent, fact-based approach that the Court seems to be taking on the public sector union question.