On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute. The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society. We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn. It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.
This is the third and final blog post on the presentation. Readers can find the first post here, and the second post here. What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases. Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.
The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act. As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois. The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.” Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong. Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.
Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees. Abood v. Detroit Board of Education (1977). The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union.
Despite the plaintiff’s arguments, the Supreme Court’s decision in Harris did not overturn Abood. Abood remains good law, and it remains constitutional for unions representing public employees to collect agency fees from non-union workers who benefit from the union’s bargaining efforts. However, in the Harris decision the Court held that joint employees fall outside of the situation where the Abood precedent applies. The majority opinion by Justice Alito stated that the Abood precedent does not allow public-sector unions to collect agency fees from what the majority termed “partial public employees,” who are “deemed to be public employees solely for the purpose of unionization and the collection of an agency fee.” Therefore, in this particular case, imposing agency fees on the home health care workers in Illinois violated their First Amendment rights because the government was not their sole employer.
Justice Kagan’s position in dissent is the better approach. The Abood rule should apply to allow agency fees not only when the government is the sole employer, but also where employees are jointly employed by the State and a second employer.
Justice Alito’s majority opinion clearly began as a draft written to overrule Abood that was then re-tooled once he realized he didn’t have the votes to overturn the decision. He spends the bulk of his time criticizing the Abood rationale. Moreover, it is clear that he believes that some sort of corruption was going on here. Home health aides are an expanding area of employment as the population becomes older and people turn to in-home care as opposed to institutional care. This is also the one segment of the economy where union membership is growing, not shrinking. Justice Alito seems to believe that the SEIU and the Illinois legislature were in cahoots to pass a state law artificially declaring these workers to be state employees.
In reality, there is no evidence of any corruption and the Illinois law makes a very acceptable policy choice. The majority of the Court may not agree with that choice, but under standard principles of federalism the Court should at least respect it. After all, states are laboratories that should be free to pass laws experimenting with solutions to social and economic problems.
According to the Wall Street Journal, turnover for home health aide workers is extremely high averaging around 40% to 65% each year. The difficulty isn’t attracting new home health aides, the Journal reports, it is “keeping caregivers in a profession that can be emotionally and physically difficult, and often offers only part-time work with limited pay and few benefits.” One of the nation’s largest employment agencies for home health workers hires 2,000 new employees a month just to replace workers who have quit.
How can we make this difficult job more appealing, and make the workforce more stable? Several states have looked to union membership as a way to increase wages and benefits in the profession and to reduce turnover.
However, home health aides are assigned to one individual and work closely with that person in their home. They assist their customer with the most intimate bodily functions. The states want to foster a relationship where the worker is answerable to the customer and where the customer has control over which worker cares for them.
Joint employment by both the customer and the state accomplishes both goals. The state pre-qualifies a pool of workers, using uniform standards, and provides for uniform wages and benefits. It provides a counsellor who supervises the relationship between the worker and the customer. The state also pays the worker’s wages. The customer, on the other hand, hires the worker out of the pool and has the ability to fire the worker and choose a different one without asking the state’s permission.
Is this the best solution to a field with high demand, high turnover, and a job relationship that is intensely personal between the customer and the worker? I don’t know and I don’t care. But creating a “joint employee” arrangement is an acceptable policy choice to advance the government’s interests.
Justice Alito’s refusal to extend agency fees to joint employees rather than instances where the government is the sole employer is influenced by his negative view of the Abood case. He simply wants the rule of Abood to apply in as few fact scenarios as possible. His hostility to Abood is based on that case’s rejection of an absolutist view of the First Amendment. The Abood case recognizes that the First Amendment rights of employees are not without limits in the workplace, and can be limited where government employers have a compelling interest.
The problem with Justice Alito’s absolutist view of the First Amendment is that there are other lines of precedent recognizing the compelling interests of governments when they act as employers. For example, it is established that government employers can discipline employees who are disrupting the workplace by griping excessively about wages and working conditions, and that such discipline does not violate the First Amendment rights of those employees. All employers need to be able to manage their employees so that the office works efficiently and harmoniously. Government employers are no different than private employers in this regard. An absolutist interpretation of the First Amendment would make some employees unmanageable. Government agencies couldn’t operate if disruptive employees could avoid discipline by claiming that their activities constituted constitutionally protected free speech. (Relevant examples include Garcetti v. Ceballos and Borough of Duryea v. Guarnieri).
The majority should have let states experiment with the joint employee approach. Union representation won’t be effective without the agency fees, and collective bargaining may provide the means to develop a more stable workforce in a field of high demand. The Supreme Court’s decision forces states to take over the entire employment responsibility, at the expense of customer choice and dignity, or else to forego the benefits of a more stable workforce.
The common denominator in the McCutcheon, Hobby Lobby and Harris cases is that all three of the cases involve the First Amendment, either directly or tangentially. Most significantly, all three cases reflect the fact that an absolutist view of the First Amendment has been embraced by a majority of the Justices.
In Harris, the majority narrowly construed a government employer exception to the First Amendment rights of employees. In McCutcheon, the plurality continued its recent movement towards embracing an absolute view of free speech in the campaign finance area. Meanwhile, in Hobby Lobby, the majority interpreted a congressional statute to create new rights of free expression that go beyond the rights protected under the Constitution.
In two cases, the absolutist view of the First Amendment was used to attack prior precedent that had advanced liberal policy goals. Abood was union-friendly. Buckley and McConnell upheld campaign finance laws. In the Hobby Lobby case, the target was not prior precedent, but rather provisions of the Affordable Care Act itself.
The arguments advancing an absolute view of the First Amendment in these three cases operate like a Trojan Horse. They are designed to get past the defenses of the castle, and destroy the liberal policies inside. It is a particularly effective tactic because liberals are genetically programmed to love the First Amendment. They are therefore unable to respond to an attack on liberal policies that is framed in First Amendment terms.
I believe that the Framers of the Constitution wanted to protect individual rights, but they also wanted a government that works. That requires balancing rights against delegated powers, and not furthering either side to the extreme. Properly understood, the Constitution does not protect any rights in absolute terms. (Consider Justice Scalia’s comment in Heller v. District of Columbia: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”).
It is not surprising, therefore, that at one time conservative legal scholars argued that the First Amendment does not protect all forms of speech all of the time. Robert Bork was a notable example. In his well-known Indiana Law Journal article, Neutral Principles and Some First Amendment Problems, he explicitly rejected an absolutist interpretation of the First Amendment. (See pages 20-22). Justice William Rehnquist, dissenting in the case of Texas v. Johnson (a case involving flag burning), provides another example.
Any doctrine holding that individuals possess absolute rights of free speech and free religious expression under the First Amendment would make it impossible for the government to enforce compliance with the laws passed by our democratically elected representatives, especially if the Supreme Court continues to extend absolute rights to corporate actors as well as human beings. The result would be to substantially weaken federal and state government. But perhaps that is the point of the plaintiffs in these cases.