Supreme Court

The Limits of Textualism and the Union Agency Fee Case

I'm all for carefully reading the words of the Constitution, and applying the distinctions that it draws -- but we need to make sure we're understanding just what those distinctions are.

|The Volokh Conspiracy |

Friday, I argued that there's no First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there's generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there's no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments.

Now looking close at the distinctions that the Constitutional text draws is indeed important—but we need to make sure we understand what the text actually means. And here, the enumerated taxation power is quite beside the point.

[1.] To begin with, the enumerated power to tax is the power of Congress to impose federal taxes—"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." It has nothing to do with states imposing state taxes. Illinois and Michigan (the states in Janus and in Abood, the precedent on which the First Amendment challenge in Janus relies) have no express federal authorization to impose taxes that they can use to speak, just as they have no express federal authorization to impose agency fees on their employees that unions can use to speak.

But that's just fine, because the U.S. Constitution does not purport to enumerate all the sources of state power (including local power). The Constitution creates a federal government of enumerated powers, but it doesn't limit state governments to such enumerated powers—state governments, both before the Constitution and after, had plenary powers.

States' plenary powers as well as the federal enumerated powers, to be sure, are subject to express federal constitutional constraints (such as the Free Speech Clause, as incorporated via the Fourteenth Amendment, the Contracts Clause, and the like). My argument is that requiring people to pay money that then ends up being used for ideological expression doesn't violate the Free Speech Clause, whether payment is through taxes or through agency fees; but of course I recognize that others disagree with me.

It's just that any First Amendment distinction between (A) states' power to compel taxpayers to pay taxes that are used for ideological expression (which is clearly settled) and (B) states' power to compel employees to pay union agency fees that are used for ideological expression (which some are denying) cannot rest on an enumerated powers argument—since enumerated powers have nothing to do with the proper scope of these particular state powers.

[2.] Even if this case involved a federal mandate that federal employees pay union agency fees, I think the existence of the Taxing Power would still be irrelevant. Whatever might be the scope of enumerated powers thinking when it comes to the federal government as sovereign, imposing requirements on all of us, I think it's out of place when it comes to the federal government as employer, imposing requirements on its employees.

To have employees at all, the federal government has to be acting within some enumerated grant of power—for instance, to have post office employees, it might act under the power "To establish Post Offices." But once it has that power, I think it has broad authority (whether under that power or under the Necessary and Proper Clause) to impose various requirements on employees. The federal government doesn't have to have an express power to require employees to wear uniforms, or to take tests, or to go on trips as a condition of employment (or of continued employment); it can impose such requirements as part of its decisionmaking about how best to implement the underlying power (here, to establish Post Offices). Likewise, if the federal government thinks that the post office will run more efficiently (for instances, with fewer strikes or internal controversies) if it's unionized and if the employees are represented by an exclusive bargaining agent to which they have to—as a condition of employment—pay fees, that is well within the underlying power to establish Post Offices.

Of course, the federal government's powers generally have to be exercised subject to the Bill of Rights, so the government can't impose conditions of employment that violate the First Amendment. But, again, the doctrine of enumerated powers isn't really helpful to distinguishing which conditions on government employees violate the First Amendment and which don't. (And, again, when it comes to state employees, such as those in Janus, that doctrine is even more clearly inapplicable, for the reasons given under item 1 above.)

* * *

So, dear readers, keep thinking about the enumerated powers doctrine when it comes to federal authority. Keep paying attention to the text of the Constitution. But recognize what things the Constitution is deliberately silent about—such as the vast range of possible state government authority, which the Constitution was never intended to enumerate. And don't assume that, for instance, the presence of a power specifically authorizing federal taxation tells us anything about First Amendment limits on state government power.

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  1. But recognize what things the Constitution is deliberately silent about — such as the vast range of possible state government authority, which the Constitution was never intended to enumerate

    Useless, i.e. secondary, because of the STRICT limits on ALL levels of government in the 9th Amendment. If we’re to be textual.

    Of course, the federal government’s powers generally have to be exercised subject to the Bill of Rights

    Also true for state powers.
    In a system of delegated powers, unenumerated rights will always trump unenumerated powers (unless you’re Ron Paul, the KKK, a white nationalist, a homophobe, efc.) States cannot have powers never delegated., where delegation would be required (regarding fundamental rights)

  2. Whatever might be the scope of enumerated powers thinking when it comes to the federal government as sovereign, imposing requirements on all of us, I think it’s out of place when it comes to the federal government as employer, imposing requirements on its employees.

    There is a mistake in that which lawyers make commonly, perhaps to simplify a complicated topic. But the mistake generates all kinds of confusion among laymen and lawyers alike. It isn’t nit picking to correct it. In the U.S. system, neither state governments nor the federal government ought to be thought of as “sovereign.” Instead, the People are sovereign jointly, and subjects individually. In their individual roles as subjects, they are not the subjects of the government, but of themselves acting jointly. In their joint capacity they alone command the constitutive power?the power to make, empower, and limit governments. As the founders well understood, the constitutive power must be plenary, which makes it incompatible with the idea that a government of limited powers could itself be sovereign.

    When you say the government is sovereign, you imply that the government could create itself, and decide its own limits. That amounts to a claim that against such a government no other power could enforce limits. By contrast, the notion of limited government requires existence of some power outside the government to impose and enforce limits. In the U.S. that power has been the sovereign People.

    1. He is correct on sovereign as a noun. You are correct as an adjective.
      Thus, technically, the distinction does not exist for THAT word.

      When you say the government is sovereign, you imply that the government could create itself, and decide its own limit

      Only to the uninformed and/or misinformed.

    2. You are entitled to your idiosyncratic usages, but if it’s a mistake that involves confusion, it was a mistake subscribed to by the founding fathers, who routinely discussed state sovereignty vs. federal sovereignty.

      1. Thanks! I had forgotten that.

  3. “Friday, I argued that there’s mo First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there’s generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling)….”

    OK. But what it the government decides to collect your taxes but advocate ~for~ things like gang violence, racism, anti-Semitism, etc.? The First Amendment allows them to do that as well, but those would be things that many people–though, painfully, not all–would find not only objectionable, but highly so.

    I think EV’s argument fails because of precisely that: the government can collect money from me and advocate against me, not because you or most others would find me horrible (well, maybe many would), but just because they felt it politically expedient to do so. Granted it’s not in government’s enumerated powers to do that. the problem is that our government has gone so far beyond its enumerated powers for so long that I don’t trust it to represent me anything resembling accurately.

    1. Not all bad things that the government can do are unconstitutional. Indeed, not even most such things are.

      1. I’ll agree with the first part of that, but the second? Maybe shows a lack of imagination.

  4. Friday, I argued that there’s mo First Amendment problem with compulsory union agency fees in Janus v. ASFCME:

    Well after all, mo government money, mo First Amendment problems.

    1. Sorry about that, just fixed the typo.

  5. Here’s the issue I see with the argument. Taxes apply to everyone equally, regardless of if you work for the government or not. The union fee, on the other hand, only applies if you want to work for the government. It becomes a quid pro quo requirement. If you want to work for us, you have to pay Group X $Y per year. Would there still be no issue if Group X were a political party or another type of organization? Why is compulsory membership in any organization required at all in order to work for the government?

    1. Union shops are not limited to government employment. Are union fees fine elsewhere in the economy? Or are you against unions generally? Because that ship kinda sailed 80 years ago.

      The false parallel with political lobbying organizations continues. Unions are not a political party; they also do a lot of non-lobbying stuff, from negotiating to insurance to benefits…

      1. In theory. When Washington State made it explicitly illegal to spend compulsory dues on partisan political support — after the very next election, teachers had to sue their union, to get their own money back. Unions are no more hones than any other groups regarding politics.

      2. I object to union shops, not unions. In government, the constitution comes into play. A union is a non-governmental organization. Why is it legal to require membership for employment? Could employment be restricted to members of the Free Masons, 4-H Club, NAACP, or ACLU instead? If not, what is the difference?

    2. “Taxes apply to everyone equally, regardless of if you work for the government or not.”

      They don’t, but I sense you’re making an EP claim.

      “The union fee, on the other hand, only applies if you want to work for the government. It becomes a quid pro quo requirement.”

      Yes, that’s also true of the lower compensation, having to buy your uniform, etc. But so what? Professor V’s point is that if the union dues improve the workplace in the same way as having water fountains (which must be paid for, and could be paid for by government employees), who cares?

        1. I’m not going to publish my tax returns, but I’m taxed differently than my brother because I’m married with a child and he isn’t, I have a mortgage (and he doesn’t), etc. Capital gains are taxed at a different rate than income. And income tax varies by income. Property taxes (at least in my state) vary by school district, city, etc. There are also exemptions based on age, disability, etc. The sales tax rate in Texas depends on what jurisdiction you are in, and some goods aren’t taxed. Smokers are taxed more than non-smokers.

          On the government/non-government side, there is a hotel occupancy tax exemption in Texas for nonprofit religious, charitable, or educational organizations, specific nonprofit entities, government employees, and permanent residents. Certain government employees or former employees (veterans) also get tax exemptions on property taxes. Sometimes their spouses do, and this is set up in the Texas Constitution. Ditto first responders. Members of Congress (federal) get a $3,000 income tax deduction on maintaining a second residence.

          1. Thanks for exposing you error. The taxes apply equally. Exemptions and deductions are HOW they are applied. Equally.

            And the state-level examples are called federalism. (gasp)

            Anything else?

  6. Setting aside Congress’ affirmative grants of power and looking only to the First Amendment itself, what about a person’s associational rights? If someone were forced by the government to join a political organization (say, everyone must become a member of the Communist Party or the “Freedom Party,” or whatever), it would be a clear violation of their First Amendment rights. When the government is forcing government employees to subsidize a government employee union, it’s a similar principle. This is not just a non-speech related tax like an income tax that the government is then using to fund speech elsewhere. Rather, it is a situation where a person is being directly compelled to associate with an organization?a public sector union?whose viewpoint they may completely disagree with. A specific portion of the person’s paycheck is earmarked toward that specific organization, the union, and the union is purporting to speak on behalf of that person as a government employee. The First Amendment burden is greater here.

    1. The portion of fees that are compulsory are for services and negotiation. That part of unions don’t have a viewpoint.

      1. In theory. When Washington State made it explicitly illegal to spend compulsory dues on partisan political support — after the very next election, teachers had to sue their union, to get their own money back. Unions are no more hones than any other groups regarding politics

      2. That’s not right, even the negotiations have a viewpoint – usually that more money should be spent on the employee.

        This was the entire argument in the teachers union case last year, that a government union necessarily is lobbying for additional governmental spend on employee expenses – that the necessarily means that either the government should grow inside, or that a larger portion of the overall pot go toward this group.

        In this way, government unions are necessarily viewpoint driven.

  7. There’s also a greater risk of abuse when the government takes money directly from a group of people to give to a political organization than when it subsidizes speech from general tax proceeds. In the latter case, the government will be viewed as spending its own money to support the political organization and its cause, but when the government compels its employees to fund a union, the public’s perception is less likely to be that the subsidy to the union is the government’s speech and more likely to be that government employees are paying for a service they are receiving. Imposing significant constraints on the direct subsidization of another person’s political speech thus helps make clear who is really the one supporting that speech and helps ensure democratic accountability. (It’s somewhat similar to the justification for the anti-commandeering doctrine.)

  8. I am skeptical. There are cases where it’s considered legal for the government to do one thing but not legal for it to do an equivalent thing, one famous example being Obamacare being permitted only if it’s a tax. Of course, this isn’t going to matter if the courts jump over themselves in order to find it legal (as they did with Obamacare) but they don’t do that 100% of the time.

    It actually does matter. Requiring that the government outright admit “I am funding this speech” has different political implications than allowing the government to launder its funding through a non-government but government-mandated organization.

    1. You seem confused – how is the taxing power allowing Obamacare ‘considered legal for the government to do one thing but not legal for it to do an equivalent thing?’
      Where is the double standard?

    2. “There are cases where it’s considered legal for the government to do one thing but not legal for it to do an equivalent thing, one famous example being Obamacare being permitted only if it’s a tax.”

      You ignored the entire discussion re: plenary powers. States with plenary powers don’t have to find a constitutional floor for what they can do. They are bounded only by constitutional ceilings. You must know that Obamacare is a federal law, right?

      1. Relevance? To anything at all?

        1. Um, yeah. You’ve read the post, right? The problem is that when all you have is a hammer, every problem looks like a nail. So in almost every thread, you hear the same old thing (enumerated powers, Wickard, blah blah blah) even when it’s … wait for it … not relevant.

          As Prof. Volokh explained, the concept of enumerated powers does not relevance here. That doesn’t mean that it doesn’t in other situations. But this is about two situations-
          1. The states, which do not have to find an enumerated powers “hook” to pass legislation; and
          2. The federal government, which does, but generally doesn’t when we are discussing the government as employer. The government doesn’t have employees pursuant to Wickard and the commerce clause, for example.

          So the arguments are bizarre and misplaced. Which doesn’t stop them from happening.

          1. Um, yeah. You’ve read the post, right

            That’s how I knew there was no relevance.

            I tend to be more concerned by ignorance of the 9th Amendment, unenumerated rights, which are obviously superior to unenumerated powers in the 10th — with no difference between state and federal levels.

            I feared that Volokh would veer into the authoritarian statism of Ron Paul, the KKK and southern racists but, thankfully, he never came close to that obscenity.

  9. The problem with the “it’s just a tax” argument for anytime a State government requires you to pay money is that it proves too much.

    If the argument is valid, it’s Constitutional for a State to pass a law requiring those who spend money on speech to contribute an equal amount to an opposing group. Imagine a political party in control of the State legislature requiring any political contributions to another political party be matched by the donor to their political party.

    “It’s a just a tax, therefore permissible!”, when in effect it’s an otherwise permissible method (a tax) which is for an unconstitutional purpose (thwarting free speech rights in a non-content neutral way). In a similar way Judges see through many tax schemes/arrangements by looking at the actual effect rather than the language, they can see through the “it’s just a tax” rationale to the actual effect of the law.

    For the extreme argument, can someone be taxed 100% of their wealth and that money given to the politician’s friend’s if they attempt to purchase a firearm, or if they register to vote for the “wrong” party, or if they exercise any other constitutional right? After all, “it’s only a tax”, right?

    A tax is a method for raising money for otherwise lawful purposes. You can’t excuse an unconstitutional purpose by saying the method in the law is “just a tax”, recent mistaken Roberts opinions about the ACA notwithstanding.

  10. I am confused about the author’s point 2 above.

    “[2.] Even if this case involved a federal mandate that federal employees pay union agency fees, I think the existence of the Taxing Power would still be irrelevant. Whatever might be the scope of enumerated powers thinking when it comes to the federal government as sovereign, imposing requirements on all of us, I think it’s out of place when it comes to the federal government as employer, imposing requirements on its employees.”

    As an example of why union dues are ok, the previous article points to the fact it is ok for the state government as sovereign to tax and speak. But in the hypothetical above, you are imagining a federal government as sovereign, in which case your example in the previous article is “out of place”. There is in fact a difference between federal government as sovereign and employer. One is acting on two enumerated powers, the other is operating on zero or at best a far off function of one. It seems to be wrong to say federal government as employer can do X because as sovereign it can do a similar X, when it is admitted the 2 as sovereign and employer are not the same. This I think is the argument some are making, which is being overlooked.

  11. “Likewise, if the federal government thinks that the post office will run more efficiently (for instances, with fewer strikes or internal controversies) if it’s unionized and if the employees are represented by an exclusive bargaining agent to which they have to — as a condition of employment — pay fees, that is well within the underlying power to establish Post Offices.”

    It is only the requirement that they must pay fees for employment that is at issue. I am pretty sure the post office had no say in the actual union formation or representation. It is in fact the government telling a person, don’t talk to me, pay money to and talk to the third party, and the third party may or may not speak on your behalf.

    No other examples given in this or the other article come even close to that situation.

    1. You know, if you’re really having trouble with the argument, you can actually read the whole amicus brief (which was linked to) rather than tile at windmills with the assumption that you’re making a good point. Jus’ sayin’.

      Blog posts are not the same as a full legal argument, and some things (like enumerated powers) are often taken for granted.

      1. I did read the whole brief, as well as several others in the case. Let me restate so that perhaps you will understand…

        The author is missing the entire point, it isn’t that the money “ends up” being used as something an employee doesn’t want, it is that the only method for the employee to speak to the government about the employment issue is through that 3rd party that they must pay for. The entire purpose for the money is pure speech.

        1. You knocked it out of the park!

        2. No, you are simply trying to articulate your own point. Which means that I doubt you are reading the full briefs.

          Money (wages) can always “end up” being used for something the employee doesn’t want. An employer, pursuant to the terms and conditions of employment, can have lawful deductions for all sorts of reasons (subject to other applicable law, such as the FLSA). We both know that, right? You don’t doubt that, right?

          So, we are agreed so far. Next, you say that the employee can only speak through a third party to the employer. That’s not correct, either. The employee can always speak to the employer. That’s so basic I think you’ve managed to tie yourself into a philosophical knot.

          This is solely about the First Amendment. The law is already that dues for non-members cannot be used for political activities (pace the FA).

          So your argument is simple assertion, and not responsive to the argument (based on originalist understanding) advanced by Prof. Volokh. Now, that said, I think that Volokh’s argument is going to lose, not because he is wrong, but because there are five justices who will have a non-originalist take in this action.

          1. You are still missing the point.

            “Next, you say that the employee can only speak through a third party to the employer. That’s not correct, either. ”

            You are incorrect. From the complaint…
            “Exclusive representative status vests a union with agency authority to speak and contract for all employees in the unit, including those who want nothing to do with the union and oppose its advocacy. ”

            This isn’t compelled subsidy of someone else’s speech. Your own speech has been limited and is supposed to be represented by the union and it may or may not be. You are then forced to pay for it even if you disagree with what they are saying on your behalf. It is right there, speech is being restricted by the government.

            As for the political aspect, this is government, what do you call a taxpayer asking for more taxpayer money to be spent on government worker salaries? Is that not a political question? Is it not political when a union does it but it is when a taxpayer does? It is still asking the government to spend taxpayer money on something, that is inherently political.

            1. “You are incorrect.”

              No, I’m not. You simply are ignoring everything that is being said.

              You, an employee, can still talk to your employer at any time. You know this, you’re just ignoring this because it’s inconvenient. You, the employee, can discuss anything you want- including the terms and conditions of your employment. You, the employee, can, if you so choose, even talk to your employer about trying to decertify the union. Your speech is not being restricted.

              I’ll note that you ignored everything else I wrote, and that you have retreated to the usual banal platitudes. You are more than welcome to your feelings … they are what they are. And, as I noted, I am reasonably certain that the Court will overrule Abood (narrowly) not because they are acting in an originalist fashion, but because they want to (and that’s the way the law work). Sort of the whole, “We’re originalist unless and until it is inconvenient to do so.”

              (By the way, sprinkling in legal terms that aren’t appropriate, like “political question” and misunderstanding the first amendment doesn’t really make your argument more impressive. Kind of the opposite.)

  12. This comment probably is better suited for Friday’s column, but nevertheless.

    First, is Professor Volokh’s “tax and private subsidy v. direct private subsidy” argument resolved (and rejected) by the Court’s decisions in US v. United Foods (2001) and Johanns v. Livestock Marketing (2005). These cases are classic example of how government can achieve goals through taxing but cannot achieve the same goal through direct enforcement.

    Second, Professor Volokh’s argument and reliance on Walker v. Taxes (2015) seems misplaced — the more analogous case would be Wooley v. Maynard (1977) (and Hurley (1995)) because the forced payment of union dues is a form of compelled association, which like compelled speech is more repellent to the First Amendment than mere restrictions on speech or association.

    1. Any “compelled association” concern is readily dispelled by the freedom to find a different job.

      Does this “compelled association” concern apply to a citizen who wishes to attend, or perhaps has been required to attend, a town council meeting but objects to a formal prayer conducted during the meeting?

      Thank you.

      1. That prayer does not impinge on the Constitutional guarantee of Separation.

      2. You cannot condition government employment on the sacrifice of associational rights protected by the First Amendment. See, e.g. Baggett v. Bullitt (1964).

        Having to pay money to an activist organization is fundamentally different from having a prayer said at a meeting you attend. Your mere attendance does not suggest affiliation with those saying the prayer. But imagine if you had to make a donation to the church that sponsored the prayer if you wanted to attend the meeting — that is a more apt analogy.

  13. Professor, talk about a giant red herring.

    Nobody of any legal education at all thinks that the states, absent the First Amendment, could not require forced dues. But the First Amendment exists. Therefore, it limits both federal and state action which violates it.
    The forced union dues cases are only about the violation of the inalienable rights of the people not to be compelled to support a private, lobbying and political action group called a union.
    The First Amendment was adopted to protect just that right from the Federal government and, via the 24th, from the states.
    It is the libertarian amendment.
    Thank God it still lives!

  14. This is very informative and interesting for those who are interested in textualism.

  15. While I normally agree hole heartedly with EV, I cannot in this case.

    If you take his position to the extreme (de facto for the government), that means get can force me to spend my money anyway they wish, i.e., at Walmart.

    I cannot go down that path.

  16. p.s. – editing would be a nice add to the comment section.

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