The Government is Us. Let’s Unionize!

Happy New Year, and all cheer the arrival of the one and only John McGinnis on this excellent site! His contributions will make it excellenter still.

Rummaging around on the Supremes’ docket and among briefs and petitions, I’ve come across Harris v. Quinn. The question is whether it’s okay for a state (Illinois) to authorize unionization, complete with mandatory union fees, for home health care workers who provide in-home care to individual patients under Medicaid-financed programs. Abood v. Detroit Board of Ed. (1977) held that public employers have a “compelling interest” in labor peace and in preventing free-riding by employees. (However, compulsory union dues must be for collective bargaining purposes and may not be put to ideological or political uses.) So: are home care providers public “employees”? Sure, said the Seventh Circuit: they are (1) paid by the state, which (2) defines what services will be reimbursed and (3) determines who will be paid. The providers work at private homes and are actually employed by the patient; but the state is at least a “joint employer,” and so Abood applies.

The losing parties, dissident home care providers who protest the compelled association, asked for cert. The Supreme Court CVSG’d the case. The SG urged denial:

nothing here to see but a boring labor law question and a plainly correct appellate decision. The Court ignored the recommendation and granted cert.

Even in that posture, Harris was a bit of an under-reported sleeper case. What’s at issue here is an aggressive, carefully orchestrated SEIU campaign to organize vast swaths of the private workforce. And note the amazing breadth of the Seventh Circuit’s (1),(2), (3) test: it captures anybody who provides services for government money—child care, Medicaid and Medicare, foster care, child care, you name it. Even government contractors meet the test. (Needless to say, the state and union respondents defend an even broader definition.) Reversal by the Supreme Court would thwart the entire campaign to unionize the vast government contractor universe.

The merits briefs, though, suggest an even bigger story: the petitioners ask point blank that Abood should be overruled. That’s huge. What happened?

Two things. One, after the cert grant, new co-counsel came on board—a team from Hogan Lovells (the Chief’s old firm) that includes, remarkably and good for him, Neal Kumar Katyal (General Verrilli’s predecessor at the SG’s office). And two, the Supreme Court decided Knox v. SEIU. In the course dealing with (“Hudson”) notice and opt-out requirements for political union expenditures in a closed-shop context, Justice Alito’s opinion for the Court flagged serious concerns over the Court’s labor-and-compelled speech cases. “We do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake” in a union context, Justice Alito signaled (emphasis added). “Free-rider arguments … are generally insufficient to overcome First Amendment objections,” and the Court’s acceptance of such arguments in the union context are an “anomaly.” The Court’s “prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Uh-oh.

Predictably, the petitioners’ merits brief in Harris picks up those hints. But it does much more: consistent with a thought I’ve suggested here, the brief, in an impressive tour-de-force through the morass of labor-and-speech jurisprudence, explains how and why the labor cases are indeed an anomaly from the rest of the Court’s compelled speech jurisprudence; and why the time has come to put those cases, starting with Abood, out of their misery. If Abood isn’t overruled outright, petitioners continue, it should at least be stripped of its “labor peace” rationale (which is a Commerce Clause rationale for labor regulation, not a “compelling government interest” that trumps free speech concerns). And if not that, Abood should at least be limited to people who are actually employees, not contractors-turned-lobbyists. All told, an admirable piece of work.

The government’s brief in support of the state and union respondent is also a piece of work, but not in a good way. It’s a full-throated embrace of the SEIU’s position and campaign. (What else do you expect, Greve? Umh, perhaps some recognition of the fact that the federal government, through Medicaid, will pay for most of whatever the SEIU manages to obtain for its new members? Maybe some concern for the public fisc? No such luck, though.) Along the way, the brief makes the ostentatiously “originalist” point that until the 1950s, public employees weren’t thought to have any First Amendment rights: public employment was deemed a “privilege” that government could offer on any terms, including conditions that, if imposed directly, would violate the Constitution. True, but what of it? We should return to that arrangement? No, says the government. Then why raise an “originalist” point you’re not willing to stick with—to pick up a vote? Whose? Who thinks of this stuff?

The government also suggests that the Abood issue wasn’t fairly encompassed by the cert petition and the scope of the cert grant. But the government doesn’t make much of this suggestion: to the extent that the objection is plausible, it was also true in Knox, except way more so. The justices can easily reach the issue and overrule Abood. That would be big and good news indeed.

Oral argument is scheduled for January 21. I’ll have more then.