Public employees freed from union compulsion. The Supreme Court ruled this week that states can no longer require public-sector workers to contribute dues to unions as a condition of employment. Justice Samuel Alito, writing for the Court, held that "this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern."
The decision overturns the Court's 1977 precedent in Abood v. Detroit Board of Education that had created the agency-fee setup for public-sector unions. As a result of the decision, unions will no longer be able to charge employees representation fees or any dues "unless the employee affirmatively consents to pay."
Following are a couple of excerpts from the Court's opinion in Janus v. American Federation of State, County, and Municipal Employees.
On why the free-rider argument can't by itself justify impositions on First Amendment freedoms:
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage.
Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, "free-rider arguments ... are generally insufficient to overcome First Amendment objections." To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting non-members. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?
Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. "[P]rivate speech often furthers the interests of nonspeakers," but "that does not alone empower the state to compel the speech to be paid for." In simple terms, the First Amendment does not permit the government to compel a person to pay for another party's speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.
On why the agency-fee arrangement permitted by the Supreme Court's 1977 Abood v. Detroit Board of Education decision has proven unworkable:
Abood also did not sufficiently take into account the difference between the effects of agency fees in public- and private-sector collective bargaining. The challengers in Abood argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves "inherently 'political'" speech.
The Court did not dispute that characterization, and in fact conceded that "decisionmaking by a public employer is above all a politic al process" driven more by policy concerns than economic ones. But (again invoking Hanson), the Abood Court asserted that public employees do not have "weightier First Amendment interest[s]" against compelled speech than do private employees. That missed the point. Assuming for the sake of argument that the First Amendment applies at all to private-sector agency-shop arrangements, the individual interests at stake still differ. "In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector."
Overlooking the importance of this distinction, "Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends." Likewise, "Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either 'chargeable' ... or nonchargeable." Nor did Abood "foresee the practical problems that would face objecting nonmembers."
[Janus v. American Federation of State, County, and Municipal Employees, June 27]
States cannot force pro-life pregnancy centers to advertise the services of abortion clinics. This week, the Supreme Court struck down on First Amendment grounds a California law that required pro-life pregnancy centers to inform their clients how they may obtain an abortion. As Michael Farris, who represented the plaintiffs before the Court, writes, the law required the pro-life clinics "to provide free advertising for abortion clinics."
Our lawsuit challenged the so-called Reproductive FACT Act, a 2015 law that required pro-life pregnancy centers to tell women how to obtain an abortion from the state. The law had two facets: Pregnancy centers that are licensed medical facilities were directed to provide a phone number for a county office that refers callers to Planned Parenthood and other abortion providers. Centers that are not licensed medical facilities were forced to state as much in a 29-word disclosure on any advertising materials, in up to 13 languages, effectively drowning out their message in their own advertisements.
Writing for the majority, Justice Clarence Thomas quoted a 1972 decision by Thurgood Marshall, rightly reminding us that governments have "no power to restrict expression because of its message, its ideas, its subject matter, or its content." Thomas condemned the requirement to "provide a government-drafted script" as unconstitutional content-based regulation of speech. These centers exist to discourage abortions and support pregnant women in that choice. As Thomas pointed out, the notice requirement "alters the content" of the centers' speech.
The majority rejected California's argument that it was simply regulating "professional speech." Some courts of appeals have made such a distinction, but the court disagreed with the idea that speech would be "unprotected merely because it is uttered by 'professionals.'" Indeed, the court added, "the people lose when the government is the one deciding which ideas should prevail."
Also rejected was California's contention that its law was about ensuring informed consent for patients. Unlike Planned Parenthood vs. Casey, Thomas wrote, the California law blanketed "all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed."
In other words, California went too far. Its law unconstitutionally targeted these pregnancy centers because of their views opposing abortion. No one should be forced to express a message that violates their convictions, especially on such deeply divisive subjects. The court was right to put a stop to the law.
[Michael Farris, "We Should All Celebrate the Supreme Court Ruling on Compelled Speech, Regardless of Our Views on Abortion," The Los Angeles Times, June 27]
Like previous presidents, the current one has the power to restrict alien entries for national security reasons. The Supreme Court upheld the Trump travel ban this week in a 5-4 decision. The reason it wasn't a 9-0 decision, writes Kyle Sammin, is that the dissenters were more interested in taking a stand against a policy they didn't like instead of simply applying the law:
The plaintiffs in Trump v. Hawaii would have the Supreme Court invent a principle that the president's powers are reduced when he says nasty things. That idea is found nowhere in our Constitution or caselaw. If the president has the power to do something under the law, he has that power whether he is a jerk or not, whether he acts for the "right" reasons or the "wrong" ones. If a different president would have had this power under law — something no one disputes — it is ad hoc madness to say that this president does not have that power.
In Marbury v. Madison, Chief Justice John Marshall wrote that "it is emphatically the province and duty of the judicial department to say what the law is." It went without saying in those more enlightened times that it was not the province of the judiciary to say whether the law is being used by someone who, in their opinion, is using it for the wrong reasons.
The dissenters, led by Justice Sonia Sotomayor, try to get around this by claiming that the law has no rational basis. But they do so, as Roberts notes, "by refusing to apply anything resembling rational basis review." What they are really doing, as Roberts writes, is expressing their disapproval of the order and their opinion of the man issuing it. They "challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive's predictive judgments on such matters," the chief justice concludes.
There is a difference between thinking something is a bad idea (and you could easily argue that the travel ban is a bad idea) and claiming it has no rational basis and is therefore void. The plaintiffs, the district court, the Ninth Circuit, and Sotomayor are committing a cardinal sin of jurisprudence: coming up with the answer they wish was true and working backward to invent a legal justification for it.
[Kyle Sammin, "The Four Dissenting Votes in the Travel Ban Ruling Are a Dangerous Sign," The Federalist, June 27]
There is a way to keep families together and enforce immigration laws. But, writes David Inserra, that requires Congress to focus on fixing a few key flaws in the immigration system. These include overriding the 1997 Flores settlement that, per a 2016 9th U.S. Circuit Court of Appeals ruling, requires the release of all minors after 20 days of detention, including those accompanied by parents who remain detained for immigration violations. Congress would have to provide funding for appropriate detention facilities. Other fixes include requiring asylum seekers to seek asylum at U.S. consulates abroad (or explain why they came here illegally instead of first going to a U.S. consulate); changing the law that puts unaccompanied children into the immigration court system instead of quickly returning them to their parents in their home country (the William Wilberforce Trafficking Victims Protection Reauthorization Act); and providing funds to fully staff the immigration courts and asylum system. "The average wait time for a court appearance," writes Inserra, "has increased from 438 days in 2008 to 721 days now."
[David Inserra, "How Congress Can Stop Family Separation at the Border Without Allowing Amnesty," The Daily Signal, June 26]
Being insured is not the same as having access to care. While the Obamacare tax/penalty for not being insured is going away, the program is still causing problems on the supply-side, says John Goodman, who writes:
Without additional reforms to ObamaCare's restrictions on insurers, millions of Americans will continue to choose from a limited range of lackluster plans.
Many of the country's top hospitals are off limits to patients covered by ObamaCare's current plans. Take Houston's MD Anderson Cancer Center, which was named America's best cancer-care hospital by U.S. News & World Report in 13 of the past 16 years. The hospital's website suggests that it takes even garden-variety Medicaid, but it doesn't accept a single private health-insurance plan sold on the individual market in Texas.
Since Blue Cross of Minnesota withdrew from the individual market in 2016, the state's Mayo Clinic—once cited by President Obama as a model for the nation—has been off limits to Minnesotans covered by ObamaCare exchange plans. Memorial Sloan Kettering appears out of bounds for every exchange plan in New York. Both of these hospitals are open to some Medicaid patients, though Mayo's chief executive has predicted publicly that Medicaid patients may eventually have to queue behind their privately insured peers. [...]
What's driving this race to the bottom? The problem starts with the community rating system, which requires insurers to charge the same premium to all comers regardless of health status. This gives insurers an incentive to seek healthy buyers and avoid sick ones. Since healthy people tend to pick the cheapest plan, and sick buyers are much likelier to look carefully at coverage details, plans with low premiums and narrow coverage networks are suited to attract the healthy buyers insurers want. [...]
Problems on the buyer side of the market also hamper risk adjustment. Since the mandate to buy insurance has dozens of loopholes and has been enforced weakly, millions of healthy people choose to remain uninsured. When they get sick, however, they often enroll and choose the gold and platinum plans with the most generous coverage. These latecomers usually cause insurers to pay out much more in coverage than the insurers receive in premiums and subsidies. Companies like Centene have a solution to that kind of buyer behavior: They don't offer gold or platinum plans.
[John C. Goodman, "Obamacare Can Be Worse than Medicaid," Independent Institute, June 29]
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