Are Public-Sector Union “Shops” Unconstitutional?

Like most everybody else, I was focused this morning on the possibility that the U.S. Supreme Court would announce its decision on the Patient Protection and Affordable Care Act of 2010. It didn’t. But it announced another decision that in its own way might be as ominous as an invalidation of the individual mandate.

In Knox v. SEIU, a 7-2 majority of the Court made a narrow ruling on a public-sector union’s failure to provide an “opt-out” for “emergency” dues charged to non-members that went for an unexpected political expenditure. But the five conservative members of the Court went a lot further (though the specific decision turned on procedural grounds) holding that an “opt-in” should have been required, using language that could theoretically lead to an invalidation of “agency shop” agreements involving public-sector employees, where nonmembers can be required to pay fees to avoid a “free-rider” appropriation of the benefits of collective bargaining.

TAP’s Garrett Epps offered a thought-provoking instant analysis of where the decision might lead:

[The] new rule would impose substantial administrative costs on the union, and reduce the amount it collects. But more significantly, the majority’s rationale would seem to apply to all agency payments by non-members. And indeed, language in the opinion suggests that the majority thinks the whole idea of agency fees is a violation of the First Amendment. “[C] compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” the Court said, quoting an earlier case. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

If I were the National Right to Work Legal Defense Committee, these words might sound to me very much like, “Bring us a case and we will void the agency shop altogether.” That’s particularly true given language later in the opinion calling the entire “free rider” rationale into question. If workers can’t be required to join a union or to pay agency fees, then the so-called “right to work” zone will cover 50 states and Puerto Rico.

The ominous hint from Court conservatives at this point only involves public-sector unions, but it’s not clear the ultimate implications stop there.

There once was a time, and not that long ago, when non-southern Republicans often opposed “right-to-work” laws on grounds that they abrogated the right of employers and employees to freely contract ground-rules for collective bargaining. The wind is blowing very hard in a different direction these days, and it’s clear the conservative activists of the Supreme Court are raising the sails to move with it.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.