Guest Post

  • January 22, 2014
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond School of Law

    This post is part of a series examining Harris v. Quinn, for which the high court heard oral argument on January 21.

    While there are many things one could say about the January 21 oral argument in Harris v. Quinn, three things stood out to this long-time labor lawyer. There was a long exchange between Justice Kennedy and the union’s lawyer about whether the issues about which public employers typically bargain are political issues. This portion of the argument cast doubt on the validity of the distinction that the Supreme Court has made between chargeable expenses, those related to collective bargaining and contract administration, and non-chargeable expenses, which include everything else but most importantly political expenditures. 

    This longstanding distinction has protected objecting employees from being forced to subsidize unions’ political activity. As suggested in the argument, however, anything relating to terms and conditions of employment of public employees involves government expenditures and the way government spends funds can always be characterized as a political issue.  The reach of this argument calls into question not only the model of exclusive representation that has been the basis of labor law in this country since 1935, but also collective bargaining for public employees in general.  If the union must represent all the employees in the bargaining unit, as it is required to do by law, it must negotiate for benefits and working conditions that affect government expenditures; some employees may view these as political positions to which they object. While it seemed that the National Right to Work Legal Defense Foundation’s argument questioned the constitutionality of public sector bargaining and exclusive representation, the lawyer assured the justices that those issues were not before them in this case. The implications for the American labor law system are clear, however.

    There was also a suggestion that the free rider problem could be solved by abandoning exclusive representation and allowing the union to represent only its members. This ignores two realities.  First, as a practical matter employers do not want to administer different pay plans, benefits and working conditions for similar groups of employees. The nonmembers would likely obtain what the union negotiates even without the requirement of exclusive representation. Second, as suggested by the union’s lawyer, what could be more coercive of associational rights than a system where unionized workers are paid more than nonunion workers doing the same job solely because they are union members? Although the attorney from the National Right to Legal Defense Foundation intimated that such a system would be constitutionally and legally permissible, it would be surprising if no legal challenge to such a disparity were mounted.

  • January 22, 2014
    Guest Post
    by Alan E. Brownstein, Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law
     
    Massachusetts law creates a 35 foot buffer zone around the entrances of clinics that provide abortion services. As written and applied, the law prohibits even a single individual standing on a public sidewalk near a clinic’s entrance from calmly trying to counsel women against having an abortion. During last week’s oral argument in McCullen v. Coakley, many Justices appeared to be convinced that a regulation prohibiting such seemingly quiet and persuasive speech violated the First Amendment.
     
    Massachusetts argued the law was a permissible content-neutral attempt to eliminate congestion preventing people from safely entering and leaving clinics. The regulation satisfied intermediate level scrutiny, the appropriate standard of review, because the law served an important state interest, allowed adequate alternative avenues of communication, and did not ignore less restrictive alternatives – that is, the law did not burden substantially more speech than necessary to further its purposes.
     
    The Court seemed unconvinced. Several Justices returned repeatedly to a single inquiry: If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing. Even Justice Kagan, who seemed somewhat sympathetic to the state’s position, suggested the 35 foot size of the buffer zone was problematic.
     
  • January 22, 2014
    Guest Post
    by Joshua Block, LGBT Project, American Civil Liberties Union
     
    This post originally appeared on the ACLU's Blog of Rights.
     
    Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
     
    After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
     
    “We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago.  “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”
     
  • January 17, 2014
    Guest Post
    by J. Chris Sanders, Attorney, Chris Sanders Law PLLC
     
    * This post is part of a series examining Harris v. Quinn, for which the high court will hear oral argument on January 21.
     
    The United States Supreme Court will soon hear oral argument in Harris v. Quinn, concerning the rights and responsibilities of unionized home healthcare workers in Illinois. Others have already spoken well on the subject in this ACSblog series. And it seems to me that this case, flying under the legal radar until it is heard, is poised to let activist conservative justices undo the legal solidarity fabric that undergirds American labor relations.
     
    I’ve been a union and workers’ lawyer for more than twenty-five years. I’ve represented construction and heavy-industry workers, the backbone of the traditional labor movement. I’ve represented some white-collar employees. But for most of my career, I’ve been by the side of so-called low-skilled, low-wage workers- retail clerks, meatpackers, healthcare aides- people who do hard, dirty, and dangerous duties that many won’t touch. Maybe, like me, you used to do manual labor, but now you use your eyes, fingers and creativity on the job much more than your back and knees. If so look at this issue through your memories and through the eyes of those who do truly hard work for very little.   
     
    The kernel of the Harris issue is workers paying for union services. Since there’s a lot of misinformation about union membership, union security and union participation, a little background is needed. No one has to become a member of a labor union: that’s your First Amendment right. If you don’t want to join, you don’t have to. In southern and western states (and now Midwestern states like Michigan and Indiana), the nearly half of America that is “right-to-work,” you can work in a union shop and get union benefits and services for free. But, in the rest of the country, if your workplace has a union and a contract with a union security clause, you have to pay an amount roughly equivalent to union dues to work there. You don’t have to join, you don’t have to agree, you don’t have to go to meetings, you don’t have to participate.  But paying for union services isn’t optional.
     
  • January 17, 2014
    Guest Post
    by Timothy S. Jost, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law
     
    On January 15, 2014, the ACA won its most important legal victory since the Supreme Court upheld the individual mandate in NFIB v. Sebelius. Judge Paul Friedman of the federal court for the District of Columbia ruled in Halbig v. Sebelius that an IRS rule authorizing the issuance of premium tax credits in states with federal exchanges was supported by the “unambiguously expressed” intent of Congress, and thus valid.
     
    The issue in Halbig is this: The ACA authorizes the IRS to offer premium tax credits to individuals who have household incomes between 100 and 400 percent of the federal poverty level and who are not eligible for other forms of coverage (such as employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available for insurance purchased through the exchanges. The ACA requests the states to establish exchanges, and sixteen states have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that choose not to set up their own exchanges. The federal exchange covers 34 states. 
     
    Two clauses of the ACA section authorizing premium tax credits provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs in Halbig argue that this provision bars the IRS from issuing premium tax credits to individuals who enroll through federal, as opposed to state, exchanges. 
     
    A victory for the plaintiffs on this theory would have blown a major hole in the ACA.  Not only would it have barred millions of Americans who live in federal exchange estates from receiving premium tax credits, it would have also rendered the employer mandate unenforceable in those states. Employers that do not cover their employees are only subject to a tax penalty if employees receive premium tax credits through an exchange.