Constitution Daily

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Trump team joins fight against union fees

December 7, 2017 by Lyle Denniston


In a move that could tip the balance in the Supreme Court against labor unions representing public employees, the Trump Administration has added the federal government’s powerful voice to a long-running constitutional attack on fees charged to workers who do not belong to those unions.

In a brief filed Wednesday evening, the Administration’s top advocate in the Supreme Court, Solicitor General Noel J. Francisco asked the Justices to rule that it is unconstitutional for public-sector labor unions to charge any fees from workers who object to doing so based on their personal beliefs.   With four Justices having already signaled that they are ready to rule that way, and a fifth considered likely to create a majority, the Administration’s support could be crucial in sealing those unions’ loss.

It has long been true that workers who are represented by a union but refuse to join it themselves do not have to pay dues that would be used to support political goals of the union.   That was true for non-members of public employee unions as well as unions in the private sector.

But it has been true, as a result of a decision by the Supreme Court 40 years ago, that non-union members in a government workplace – such as teachers, police officers and firefighters — can be charged a fee as their share of support for the union’s efforts in bargaining for them on wages, hours, benefits and working conditions.   These so-called “agency fees” must be calculated so that the money from objecting non-members goes only to pay for bargaining.

The reason behind allowing such fees is that, since a union that wins the right to represent a given workplace has a legal duty to bargain in the interest of all workers – non-members as well as members – it should be allowed to draw financial support for the costs of carrying out that specific duty.

The new filing by the Trump Administration argued that the time has come for the Court to overrule that 1977 decision, Abood v. Detroit Board of Education.   Because everything that a public employee union does in bargaining over benefits has a political dimension – that is, it can affect government policy and budgets – the argument is that non-union members should have as much right to object to sharing bargaining costs as they do to pure political action such as supporting political candidates or lobbying for legislation favoring union labor’s causes.

Here is the way Solicitor General Francisco summed up that argument in the new brief: “When the government is on one side of the bargaining table, topics like wages, pensions, and healthcare are important political issues, because the money to fund those benefits comes from the public fisc.”

Contrasting public sector union bargaining with what unions do in the private sector, the government filing contended that the profit motive and market factors are no longer the guides for management’s response to union demands.  Instead, the document said, “different incentives” are at work in the public sector: the government employer wants to accommodate workers who are constituents and potential voters.  Contracts with public-sector unions have to be ratified, it added, by higher-level government officials, making it like the public act of legislating, with the union in effect lobbying for government benefits.

The Solicitor General moved to enter a case involving an Illinois worker against the union that represents his state government agency because, the brief noted, the federal government is “the nation’s largest public employer” and thus has “a substantial interest” in the “agency fee” dispute.  He added that the government also has federal laws that deal with the legality of such fees in the private sector.

The Trump team’s support for that worker’s challenge to “agency fees” is just the opposite of the Obama Administration’s support of such fees, marking the latest break by the new Administration with a position taken by its predecessor.   The Court, in general, shows considerable respect to the views of the Executive Branch as an equal partner in the national government.

Because the Supreme Court’s ruling in favor of such fees was based on an interpretation of the Constitution’s First Amendment, that can only be reconsidered by the Court itself (absent a constitutional amendment).  Lower courts, in deciding a series of test cases against such fees, have simply had to apply the 1977 decision in favor of the fees.

The goal of ending such fees in public-sector bargaining almost certainly starts out with four Justices in its favor, because of the outcome of the last case seeking to test the 1977 precedent, a case involving a California teachers’ union.  In mid-2015, the Justices had agreed to hear that case.  However, after Justice Antonin Scalia died during the following term, after the Court had held a hearing on the case, the eight other Justices could not assemble a majority, so a simple, one-sentence order upheld by a 4-to-4 vote the lower court ruling applying the 1977 precedent.

Although the Court did not identify how the eight Justices had voted individually, it seems almost a certainty that the four Justices who had voted against “agency fees” in that case would do so again, when a new case arose.   Now, with the addition of a conservative new Justice, Neil M. Gorsuch, it is widely expected that he would be available to cast a fifth and deciding vote against such fees.

The new case raising the issue is Janus v. American Federation of State, County, and Municipal Employees Council 31.  The challenger is Mark Janus, who is an employee of the Illinois Department of Healthcare and Family Services.   He does not belong to that union, but an “agency fee” to cover collective bargaining costs is taken out of his paycheck every work.  He wrote a column in the Chicago Tribune last year, stressing that he was not anti-union but that the public-sector union that represents his department’s employees does not share his political or public policy views, and he does not want it to speak for him.

He entered an already-filed lawsuit attacking those fees.  Necessarily controlled by the Supreme Court’s Abood decision, both a federal trial court and the U.S. Court of Appeals for the Seventh Circuit dismissed the challenge, and Janus then took the case to the Supreme Court.  It granted review just before the current term opened in October.

The hearing on the case has not yet been set.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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