Public sector workers have a First Amendment right to refrain from paying dues to a union they disapprove of. The Supreme Court enunciated that right in the 2018 case of Janus v. AFSCME, but today it is on the verge of becoming a dead letter — unless the Supreme Court moves to put teeth into its ruling.
One lesson of history is that a single Supreme Court decision may not be enough to change the facts on the ground.
When the court ruled in 1832 that the state of Georgia had no authority to seize land of the Cherokee Nation, its decision was ignored. “John Marshall has made his decision; now let him enforce it,” President Andrew Jackson reportedly said. Federal troops were sent to remove the Cherokees. Thousands died along the Trail of Tears.
There was a very different outcome 122 years later, when the Supreme Court ruled in Brown v. Board of Education that racial segregation was unconstitutional. Brown directed states to desegregate their classrooms “with all deliberate speed,” but Arkansas’ Legislature and governor moved to flout the court’s decision and keep the schools in Little Rock segregated. This time the Supreme Court did indeed “enforce it.” In a follow-up case, all nine justices dramatically signed an opinion ordering Arkansas officials to comply with the decree in Brown. In blunt language, they declared that their ruling was binding on the states, which had no power to nullify it.
Now it is Janus v. AFSCME (the American Federation of State, County, and Municipal Employees) that needs to be enforced.
Five years ago the court held that government employees could not be forced to subsidize the political activities or speech of a labor union. That indignity had long been endured by public sector workers who disagreed with a union’s ideological or partisan activities but were compelled to pay for them anyway through fees withheld from their paychecks.
In Janus, the justices found such fees, at least in the public sector, to be repugnant to the First Amendment.
“Neither an agency fee nor any other payment to the union may be deducted … unless the employee affirmatively consents to pay,” the justices decreed. Agreeing to pay fees to a public sector union means waiving First Amendment rights, “and such a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by clear and compelling evidence.” Employees must “clearly and affirmatively consent before any money is taken from them.”
So the court held in 2018. Yet in numerous workplaces to this day, Janus is blatantly disregarded. In a number of states, public sector unions and state governments collude to deny employees their rights. In California, for example, the governor and Legislature enacted a law prohibiting public agencies from communicating with employees about union membership or dues. Under the new law, only union officials could broach that subject with workers. Other states passed similar laws.
Far from making sure that employees “clearly and affirmatively consent” before union fees are deducted from their pay, these states — under pressure from mobilized unions — deny them any independent workplace source of information about their right to refuse. Often new hires are simply given a dues-withdrawal form to sign along with all the other first-day paperwork. When disgruntled dues-payers later learn of their rights and seek to withdraw their agreement, they are routinely confronted with confusing rules intended to make it almost impossible to stop paying. The Freedom Foundation, a workers’ rights education and litigation institute, documents dozens of such cases in a recent Supreme Court filing.
The court is being asked to return to this issue by the governor and state of Alaska. Unlike other states, Alaska reacted to the Janus decision by overhauling its payroll procedures. It created consent forms that clearly notified public employees of their First Amendment rights. Rather than rely on unions to ensure that workers’ consent was freely given, the state began confirming that consent directly with each employee.
Alaska’s largest public sector union fought the new system in court. In May, the Alaska Supreme Court ruled for the union and ordered the state to revert to the old system. Now the US Supreme Court is being urged to weigh in. If the Alaska Supreme Court decision stands, Janus will have been neutered. So the state of Alaska, 11 other states, and eight public policy institutes are saying to the justices, in effect: “You made your decision. Now enforce it.”
Public sector workers who choose to support a union must be free to do so. Employees who choose not to must be equally free. The Supreme Court said as much five years ago, but it needs to say so again.