The Heritage Insider: Supreme Court to decide whether workers have a choice, Obama's gun action is legally meaningless, the flaw in Obama's plan to defeat ISIS, and more
January 9, 2016
WORKER CHOICE
On Monday, the Supreme Court will hear a case that could make all union dues—not just the portion spent on politics—voluntary for all government employees. A key argument made by the plaintiffs is that when public employees collectively bargain with the state, they are engaging in an inherently political act—and therefore fees for representation constitute compelled speech speech just as much as the portion of dues that would go to fund political candidates.
“Friedrichs v. California Teachers Association is being painted as a battle against unions, but that characterization misses the more fundamental point of the case. While the unions are, indeed, politically powerful and derive much of their power from dues and fees collected from teachers, the unions are just instruments in the collective bargaining process, and it’s the process itself that’s really at issue.
“The plaintiffs are 10 nonunion teachers who argue that they should not be forced to pay so-called ‘agency shop’ fees to the teachers union, as a condition of employment in many states, to help finance collective bargaining that results in a single contract with a school district that covers all teachers. The big rub for them is that the contract is an inherently political document that often contains policies detrimental to individual teachers and students. —Lance Izumi, “Freedom, Not Union, Key to Teacher’s Case,” Orange County Register, January 7, 2016
The lead-plaintiff, Rebecca Friedrichs, disagreed with the policy choices required by her union’s collective bargaining position. “Rebecca Friedrichs’s school district needed to cut costs in the recession. It could either lay off junior teachers or cut everyone’s pay. Although she has tenure, Mrs. Friedrichs supported the pay cuts. She wanted to keep good new teachers she worked with in the classroom. Her union disagreed and insisted — successfully — on layoffs. Rebecca Friedrichs had to pay her union to take that position. On Monday her lawyers will argue that this was unconstitutionally compelled political speech.
“If Rebecca Friedrichs wins, union dues will become voluntary for all government employees nationwide.”
A win for Friedrichs would help workers who choose to remain in the union, too. “With Friedrichs looming, government unions have begun outreach campaigns to their members. Why didn’t they do that before? Larry Saunders, president of the American Federation of State, County, and Municipal Employees admitted to the Post: ‘I think we took things for granted. We stopped communicating with people, because we didn’t feel like we needed to.’ Now unions need to. Their members may soon get a choice about paying dues. That potential freedom is already giving union members better representation.” —James Sherk, “Supreme Court Case May Bring Workplace Freedom to Government Employees,” National Review, January 5
Another plaintiff in the case is Harlan Elrich. “Harlan was a member of his local union for many years, even serving as a union representative. But he noticed that the union never played an important role in the day-to-day life of many teachers. When teachers needed help in the classroom or wanted lessons to improve their skills, they found the union didn’t offer that kind of help. The turning point for Harlan came when he received a union survey asking teachers about political issues in an upcoming election. As he filled out the survey, Harlan realized he came down against the union on nearly every position they took. His union dues, nearly $1,000 every year, were supporting politics he did not agree with.
“Harlan left his union, but under California law he still had to pay agency fees to support union collective bargaining. In collective bargaining, the union claims to speak for all teachers, but Harlan saw that collective bargaining was actually the cause of many problems in the classroom. Teachers in his school district were well-paid compared to many in their community, but the unions still pushed for higher wages. Those higher wages meant some teachers had to be laid off and that class sizes had to increase. And because of the union-backed seniority policies, many bad teachers could bide their time till retirement, while younger but better teachers were the first to be laid off. Recounting one situation in particular, Harlan points out that the ‘Students were relying on this teacher for an education, and he did not deliver. Yet he could do exactly as he pleased because the union had negotiated protections based on seniority.’” —Center for Individual Rights, “Harlan Elrich Explains Why He Is Suing His Union in Friedrichs,” January 4
Also:
Video: “Rebecca’s Story,” Mackinac Center for Public Policy
“5 Ways to Show Your Support for Rebecca Friedrichs During Oral Arguments,” Center for Individual Rights, January 7
GUN RIGHTS
The central element of President Obama’s gun-control initiative summed up in one headline: “New ATF Guidance on Gun Sales Is Legally Meaningless (or Else It Would Be Unlawful).”
Some elaboration: “According to the White House, the new ATF guidance is intended ‘to ensure that anyone who is ‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers.’ The ATF is achieving this not by issuing new regulations (re)defining what it means to be ‘engaged in the business’ of selling guns under federal law. Instead, the ATF issued a guidance document that simply explicates what this legal requirement means, providing examples of the sorts of things that would indicate that a given individual is in the gun business, rather than conducting the occasional personal sale as a hobbyist or as part of an estate liquidation, or something of that sort. […]
“One upshot of all this is that if the new ATF action is challenged in court, the proceedings will focus on these administrative law questions and will not get into whether a more expansive definition of “engaged in the business” is lawful, let alone whether requiring background checks is consistent with the Second Amendment. The first question a court will consider is whether the ATF document is, in fact, a guidance. The administration will argue that it is, as this is the best way to make a legal challenge go away. But in arguing that the “guidance” is a guidance, the administration will also be conceding that the document has no legal effect and that it does not require anything that is not already required under federal law.” —Jonathan H. Adler, “New ATF Guidance on Gun Sales Is Legally Meaningless (or Else It Would Be Unlawful),” Washington Post, January 5
The gun show loophole is a myth. “In reality, there is no ‘gun show loophole.’ If an individual wants to purchase a firearm from a licensed firearms retailer, which typically makes up the majority of vendors at gun shows, the individual must fill out the requisite federal firearms paperwork and undergo a National Instant Criminal Background Check System (NICS) background check.
“The only firearms that are being purchased at gun shows without a background check are those being bought and sold between individuals, peer-to-peer, as opposed to buying a firearm from a gun dealer. These private sales are not at all different from selling a personal hunting rifle to the owner’s niece or nephew down the road. It is a private sale, and no background paperwork is required. The gun is private property, and the sale is made like a sale of the family’s good silver. The one difference is that the locus of a gun show is being used to make the private sale.
“Under current law, an individual is permitted to occasionally sell part, or all, of his personal firearms collection. These private sellers, however, cannot be ‘engaged in the business’ of selling firearms. ’Engaged in the business’ means they can’t repeatedly sell firearms with the principal objective of earning funds to support themselves. Some of the individuals who wish to sell a portion, or all, of their personal firearms collection do so at the show and might display their wares on a table. These ‘private table sales,’ however, are private, peer-to-peer sales and, therefore, do not require a background check. The president cannot change criminal statutes governing requirements for which sellers must conduct background checks. His new actions don’t do so and don’t claim to do so.
“In a peer-to-peer, private firearms transaction, it is already illegal to sell a firearm to another individual if the seller ‘knows or has reasonable cause to believe’ that the buyer meets any of the prohibited categories for possession of a firearm (felon, fugitive, illegal alien, etc.).” —Sen. Charles Grassley, “10 Myths about Guns,” The Daily Signal, January 7
THE ECONOMY
The middle class is indeed shrinking—because it’s getting wealthier.
—Mark J. Perry, “Another Look at How America’s Middle Class Is Disappearing into Higher Income Households,” American Enterprise Institute, December 30, 2015
PUBLIC LANDS
One thing we learn from the standoff in Oregon is that the case for reducing the federal estate needs better spokesmen. “The Hammonds shouldn’t have lit the 2006 fire without coordinating with the BLM. The federal government shouldn’t have prosecuted them for prescribed burning using an anti-terrorist law. The Bundys shouldn’t have occupied the Fish & Wildlife Service office.
“Property rights advocates who want to change public views need to find ranchers more appealing than the Bundys, who want to overgraze other people’s land without paying for the right to do so, or the Hammonds, whose unauthorized fire on federal lands threatened firefighters’ lives. Without better representatives–preferably ones willing to pay their own way and not rely on taxpayer subsidies–they won’t be able to capture the hearts and minds of the American people, which means the future of ranchers who depend on federal lands is dim.” —Randal O’Toole, “No Good Guys in the West,” Cato Institute, January 4
ISIS
Trying to defeat ISIS while ruling out certain measures to do so makes no sense: “To justify the no-ground-troops policy, the president conjures up the Bush administration’s nation-building experiences, which did involve the deaths of thousands of troops and years of insurgency. But this argument has two flaws. The first: If Obama is serious about destroying ISIS, with or without U.S. ground troops involved, he will be faced with a major ‘day-after’ problem once the group is driven underground. That is exactly what happened after, without ground troops, the United States forced the Soviets out of Afghanistan and destroyed the Qaddafi regime. In short, the ‘nation-building’ argument is only logical if the president really does not intend to do anything more than contain and degrade ISIS.
“Second, it is anything but inevitable that the ‘day-after’ problem must be solved with U.S. forces. Although U.S. troops bring unique offensive capabilities to any fight, the first priority in any day-after scenario—holding terrain—can be done with local ground forces, backed by U.S. airpower, logistics, and advisors. As we see today, a heterogeneous mix of first- to third-rate Iraqi army units, assorted militias, local police, Sunni tribes, and various flavors of Kurdish fighters with their U.S. support, are holding ground against ISIS when it can field an army of 20,000–30,000; similar arrangements surely could work against its remnants. […]
“Once Washington treats ‘defeating ISIS’ and ‘the aftermath’ as two separate, albeit linked, operations, then the cost and benefits of using U.S. ground troops to defeat ISIS can be soberly assessed. Given the costs, inevitable casualties and unknowns when troops are committed, there is always a downside risk that things will go wrong, and perhaps in a happier period where no security issue is truly important the United States could afford to live with ISIS and avoid a risky commitment. But the world is now in another era, one the United States can alas remember. Obama, in his 2009 Nobel Peace Prize speech, summed it up beautifully: ‘It was not simply international institutions…that brought stability to a post-World War II world. Whatever mistakes we have made, the plain fact is this: The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.’
“He wasn’t referring just to drones, ordinance launches from 15,000 feet, or 12-man special forces teams.” —James F. Jeffrey, “How to Defeat ISIS,” Foreign Affairs, January 4
THIS AND THAT
North Korea’s claims of testing a 10 kiloton hydrogen bomb show that “[i]t s time for the Obama Administration to abandon its policy of timid incrementalism and fully implement existing U.S. laws by imposing stronger sanctions on North Korea and to work with Congress to determine additional measures.” [The Heritage Foundation, January 6]
The accomplishments of the conservatives we lost last year are immense. [The Insider, January 6]
There is a now a libertarian legal scholar on the Arizona Supreme Court. His name is Clint Bolick. [Washington Post, January 6]
Florence King, witty writer and accomplished misanthrope, R.I.P. [National Review, January 6]
Leave your First Amendment privilege upstate: “In New York, You Could Be Fined $250K for Failing to Use a Transgender Person’s ‘Preferred’ Pronoun” [Daily Signal, January 6]
The Internal Revenue Service has backed down on a proposal to collect donor Social Security numbers from nonprofits. [The Hill, January 8]
The movie Joy is one of the rare movies in which the entrepreneur is the hero not the villain [Bloomberg, January 8]
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