Janus files SCOTUS brief

Yesterday Mark Janus' lawyers at the National Right to Work Legal Defense Foundation filed their opening brief [Full text] in Janus v. AFSCME – pending at the US Supreme Court.

This case will almost certainly bring about the end of public sector unions' "agency shop" arrangements. I can't find anyone who believes otherwise.

 Mark Janus

Mark Janus

Brief history: Abood v. Detroit Board of Education 431 US 209 (1977) upheld fair share clauses in the public sector. Harris v. Quinn 134 S.Ct. 2618 (2014) held that the 1st amendment prohibits assessment of fair-share fees against in-home caregivers — paid by the State of Illinois but hired and supervised by their patients — who do not want to join or support the union. Technically, Harris v. Quinn did not overrule Abood. Yet the 5-4 majority laid out a set of reasons why it believes Abood's analysis is "questionable." See the list of reasons at Janus v. AFSCME could end public sector "agency shop" agreements.

We thought we would get this issue resolved in 2016 in Friedrichs v. California Teachers Association but Justice Scalia's death left us with an evenly divided Court [Opinion]. With Justice Gorsuch replacing Justice Scalia, a five-member majority probably has a draft opinion from the Friedrichs case ready to revise and file.

Janus' brief spells out the negotiations between AFSCME and Illinois Governor Bruce Rauner, in order to make the point that all fees paid to a union are ultimately used for political purposes.

AFSCME's brief is due January 12. Meanwhile, here's Janus' argument summary:

The "'Court has not hesitated to overrule decisions offensive to the First Amendment.'" Citizens United v. FEC, 558 U.S. 310, 363 (2010) (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 500 (2007) (opinion of Scalia, J.)). Abood is offensive to the First Amendment. It permits the government to compel employees to subsidize an advocacy group's political activity: namely, speaking to the government to influence governmental policies.

Abood should be overruled for the reasons stated in Harris, 134 S. Ct. at 2632–34. Abood was wrongly decided because bargaining with the government is political speech indistinguishable from lobbying the government; Abood is inconsistent with this Court's precedents that subject instances of compelled speech and association to heightened constitutional scrutiny; Abood's framework is unworkable and does not protect employee rights; and no reliance interests justify retaining Abood. The Court should abandon Abood and instead follow its precedents that subject compelled speech and association to heightened First Amendment scrutiny.

Agency fee requirements cannot survive that scrutiny because they are not the least restrictive means to achieve any compelling government interest. Even if the government had a compelling need to bargain with unions—which it does not—the government does not need to force employees to subsidize those unions to engage in that bargaining. The valuable powers, privileges, and membership-recruitment advantages that come with exclusive representative status are more than sufficient to induce unions to seek and retain the exclusive representative mantle. This especially is true given that any unwanted obligations that come with that status are minimal. And far from being a least restrictive means, agency fees exacerbate the injury nonconsenting employees suffer from being forced to accept an unwanted bargaining agent whose advocacy may be both contrary and harmful to the employees' interests.

Abood's "free rider" rationale for agency fees gets it backwards by presuming that exclusive representation burdens unions and benefits nonmembers. The opposite is true. Consequently, Abood's rationale falls short of what the First Amendment demands. The Court should hold the First Amendment prohibits the government from taking agency fees from public employees without their consent.

[For a list of current employment law cases, see Supreme Court Watch.]