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.

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.)

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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.