The Trump administration sided against public employee unions Wednesday evening in a Supreme Court case that could deal the labor movement a crippling financial blow.
In a brief submitted in Janus v. American Federation of State, County, and Municipal Employees, the Office of Solicitor General sided with a child-support specialist for the state of Illinois who’s challenging AFSCME’s legal right to collect so-called "fair-share fees" from union nonmembers. Unions say such fees are necessary to cover collective bargaining costs for union nonmembers, whom they’re required by law to represent. But plaintiff Mark Janus is arguing that the mandatory fee violates his protected speech under the First Amendment.
Janus’s legal challenge is financed in large part by the conservative Bradley Foundation, which see the case as an opportunity to impose right-to-work rules on public employee unions in all 50 states. Twenty-eight states have passed right-to-work laws blocking private-sector unions from fees from union nonmembers, most recently Missouri (though unions will seek to overturn that state’s right-to-work law, passed in February, in a referendum next year).
Trump won the presidency with strong support from white working class voters, but as a candidate he expressed support for the right-to-work movement. "I like right to work," he told a North Carolina radio station during the campaign.
The Office of Solicitor General had not previously weighed in on Janus, but under President Obama it sided with unions in a near-identical case, Friedrichs vs. California Teachers Association, and argued that public-employee fair share fees were legal. That case (also financed by the Bradley Foundation) ended in a 4-4 deadlock in 2016 after the death of Justice Antonin Scalia, who had been expected to vote against fair share fees. It’s thought likely that with Justice Neil Gorsuch on the bench, the high court will abolish fair share fees later this term when it rules in Janus .
For the Trump administration, the court brief is the latest in a series of moves to roll back union power, including President Donald Trump’s appointment of pro-management board members to the National Labor Relations Board. In June, the Office of Solicitor General switched sides in another case before the high court concerning the legality of mandatory arbitration fees in employment contracts, which unions typically oppose. Under President Obama, the Office of Solicitor General had argued that the fees were illegal, but under President Trump it reversed field and declared them legal.
In its Janus brief, the Office of Solicitor General embraced the plaintiff’s argument that fair share fees violated his right to free speech. "In the public sector," the brief said, "speech in collective bargaining is necessarily speech about public issues," and "virtually every matter at stake in a public-sector labor agreement affects the public."
"Compelling employees to subsidize speech on politics and public policy imposes a severe burden that even highly restrictive prohibitions on speech in the workplace do not," the brief said.