The Trump administration asked the U.S. Supreme Court late Wednesday to overturn a 1977 precedent allowing public-sector unions to charge non-members fees for collective bargaining.
The Department of Justice filed an amicus (or “friend-of-the-court”) brief in a pending case challenging the constitutionality of so-called union fair share fees. The end of the fair share arrangement would be a major blow to the political and financial influence of public-sector unions.
The case, Janus v. AFSCME, was brought by an Illinois state employee named Mark Janus, who pays compulsory fees to the American Federation of State, County, and Municipal Employees, despite the fact that he is not a member of the union. Pursuant to a 1977 Supreme Court decision, Abood v. Detroit Board of Education, public-sector unions may charge non-member public employees for administrative costs incurred while negotiating for salaries, benefits, and working conditions.
Janus argues that the mandatory fees require him to subsidize political speech and association with which he disagrees. Though the Abood decision found that collective bargaining is not political speech, Janus argues that a union negotiation with government officials inherently implicates political issues.
The Justice Department agrees, arguing in its Wednesday brief that mandatory union fees offend bedrock constitutional principles.
“By authorizing state and local governments to compel public employees to finance speech on matters of central public concern with which they disagree, Abood conflicts with prevailing precedents and with ‘the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support,'” the brief reads.
The filing is something of an about-face for the government, which defended the Abood decision during the Obama administration. Janus is the latest in a series of cases in which the Trump administration has switched positions in a major controversy pending before the high court.
“The government’s previous briefs gave insufficient weight to the First Amendment interest of public employees in declining to fund speech on contested matters of public policy,” the brief reads, in explaining the change of position.
The Court last considered the Abood decision in 2016, in a case called Friedrichs v. CTA, but Justice Antonin Scalia died before an opinion was issued, resulting in a 4-4 split. With the ascent of Justice Neil Gorsuch as Scalia’s successor, it appears the conservative bloc will achieve in Janus what it nearly accomplished in Friedrichs.
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