In light of the inequities and inefficiencies associated with monopolistic government unionism discussed in Part One of this review, as well as a number of others Howard touches upon, one might assume that every one of the dozens of federal and state statutes currently authorizing union officials to act as the “exclusive” bargaining agents of public employees would today be ripe for repeal.

But legislative efforts to roll back union officials’ special legal privileges and even administrative efforts to hold Big Labor accountable when it grabs powers to which it has no legal claim are almost always steeply uphill battles, as Howard emphasizes.

He correctly points out that, in the 12 years since Wisconsin adopted Act 10, a budgetary reform measure including the first substantial narrowing of the scope of a state monopoly-bargaining statute in U.S. history, lawmakers in most other states with such statutes have been very reluctant to even try to replicate the rollback.

This is so even though, according to key criteria, Act 10 has been a huge success:

The state realized savings of $5 billion to $7 billion per year, some of which went into support of small businesses and tax reductions. . . . It appears as if even [Democratic elected officials] are happy to get unions off their backs. Schools and agencies are manageable and work better, and the state is no longer saddled with a large operating deficit.

The fact is, even many state politicians who purport to be strongly pro-self-government and pro-taxpayer are reluctant to undertake a bruising confrontation that potentially could, like Wisconsin’s Act 10 war, drag on for years. While Act 10’s architect, GOP Gov. Scott Walker, fended off a Big Labor recall drive in 2012 and was later reelected in 2014, that political success is evidently not enough to stem their concerns.

Elected officials’ recalcitrance and lack of courage is part of the reason why, in Howard’s view, citizens who want, as he does, to abolish exclusive union bargaining in the government sector will most likely have to concentrate on judicial rather than legislative remedies.

In order to find unconstitutional all laws requiring politicians or their appointees to co-manage public servants with union officers, he argues, federal courts need only follow the “basic [constitutional] principle,” applicable to state and local as well as federal elected officials, that “government cannot delegate to private parties essential governing choices.”

To back up his contention that the nondelegation doctrine is constitutionally mandated, Howard cites the Supreme Court’s 1879 ruling in Stone v. Mississippi, already quoted in Part One of this review, and the first sentence of Article II of the Constitution, which provides, in part, that “the executive Power shall be vested in a President.” Finally, Howard cites the Guarantee Clause in Article IV (the “United States shall guarantee to every state in this Union a Republican Form of Government”) to show that the federal judiciary has an obligation to strike down state laws and policies that violate the nondelegation doctrine.

To this writer, at least, it is a compelling legal argument.

Moreover, although Not Accountable makes no mention of it, a similar argument against the constitutionality of public employee unionism as it has been practiced for decades throughout most of the U.S. was presented to and taken up by the Supreme Court roughly four decades ago.

But although under the statutory law of the time the High Court had to review the case, known as Knight v Minnesota Community College Faculty Association, the Justices chose to treat it “in a summary fashion,”

without briefs on the merits, oral argument, or a full opinion, notwithstanding that, under the jurisdictional statute in force at the time, the nonunion employees [who were challenging the monopoly-bargaining statute] had a right to appeal their case to the Court, and notwithstanding that the disposition, albeit summary, was nevertheless a decision on the merits. [Footnotes omitted.] 

Representing black-studies teacher Leon Knight and roughly a dozen-and-a-half other faculty members of the Minnesota state junior college system on behalf of the National Right to Work Legal Defense Foundation, plaintiffs’ attorneys Edwin Vieira and Darel Swenson contended that Minnesota’s monopoly-bargaining statute “transfers some measure of decisionmaking authority over public policies from public officials to private groups . . . .” By doing this, they said, the statute unconstitutionally delegates “governmental sovereignty to those groups.”

While the precedents cited by Vieira and Swenson in their petition asking for the High Court to review a district court decision upholding the monopoly-bargaining statute (including, most notably, ALA Schechter Poultry Corporation v. U.S. and Carter v. Carter Coal Co.) are not those cited in NOT Accountable, the Knight plaintiffs made basically the same nondelegation argument Howard is making in 2023.

The plaintiffs’ argument was amply backed up, both factually and legally, by expert witnesses. And it was supplemented by a compelling independent First Amendment claim that monopoly-bargaining statutes unconstitutionally force union nonmembers to associate with highly political labor organizations.

But all this was to no avail.

Rather than directly confront the nondelegation and First Amendment claims made by the Knight plaintiffs, the Supreme Court in 1983 summarily dismissed their case, affirming, without further comment, the U.S. District Court for the District of Minnesota’s ruling that so-called exclusive union representation in government workplaces is constitutionally valid.

The district court had contended its stance was mandated by the High Court’s 1977 decision in Abood v. City of Detroit, which, according to the district court, upheld the permissibility of “exclusive representation bargaining” in the public sector.

The reality is that the public-employee litigants in Abood, who were challenging on First and Fourteenth Amendment grounds the forced union fees extracted from them as a job condition, made a strategic decision not to advance any constitutional arguments against union monopoly bargaining itself in their case. For that reason alone, the High Court could not have licitly upheld or rejected the constitutionality of public-sector exclusive union representation in Abood. Justice Potter Stewart’s opinion for the unanimous court did not purport to decide this issue. Nor did any of the case’s three concurring opinions.

Yet even though the High Court’s summary dismissal of the plaintiffs’ appeal in Knight merely affirmed a district court ruling that falsely characterized Abood, Knight is to this day frequently invoked by federal courts as sufficient grounds for dismissing constitutional challenges to monopoly bargaining.

The history of Knight and its aftermath gives cause to doubt Howard’s assessment that resistance to reform of misbegotten, pro-union monopoly labor polices is less entrenched in the American judiciary than it is in our legislative or executive branches of government. But it should not cause today’s reformers to despair.

A key reason to harbor hopes that Knight can be swept away and the High Court can seriously consider, for the first time, the compelling arguments attorneys like Vieira, Swensen, and Howard have been making for decades is the Supreme Court’s 2018 ruling in Janus v. AFSCME, a case argued and won by Right to Work Foundation attorney William Messenger.

Deciding in favor of independent-minded Illinois civil servant Mark Janus, the Janus court reversed Justice Stewart’s 1977 Abood ruling, in which he upheld the constitutionality of laws forcing union nonmember public employees to bankroll Big Labor bargaining activities, even as he conceded that compulsory payments to unions may well “interfere in some way with the employee’s freedom to associate for the advancement of ideas, or to refrain from doing so . . . .”

In addition to holding that forced employee financial support for government unions violates the First and Fourteenth Amendments, Janus acknowledged that, even absent compulsory dues or fees, union monopoly bargaining in the public sector “substantially restricts the rights of individual employees.”

Probably the most extraordinary illustration of how inequitable such union exclusivity can be that is currently before the federal judicial system is Goldstein v. PSC.

In Goldstein, six City University of New York (CUNY) faculty members, five of whom are Jewish, charge that officials of the Professional Staff Congress (PSC/AFT/AFL-CIO) union to whose monopoly-bargaining power they are subject have singled out the Jewish plaintiffs for “opprobrium, hatred and harassment” based on their religious/ethnic identity and their moral beliefs. For this and other reasons, the plaintiffs, who are being represented by attorneys for the Right to Work Foundation and the Fairness Center, want to dissociate themselves from the PSC union. Their goal in Goldstein is to overturn the union brass’s monopoly power under New York State law to speak for them in their dealings with CUNY on all matters concerning pay, benefits, and work rules.

On November 30, District Judge Paul Engelmayer dismissed the Goldstein plaintiffs’ challenge to the pro-union monopoly provisions in the Empire State’s Taylor Act. He insisted that Knight and a host of subsequent federal rulings citing this precedent gave him no choice:

Although plaintiffs’ dismay at being situated in a bargaining unit led by persons whose views they find reprehensible is undeniably sympathetic, Knight and its circuit-court progeny squarely foreclose such a basis of a viable First Amendment claim.

Of course, if the Supreme Court’s cavalier dismissal in Knight of both nondelegation and First Amendment objections to government-sector union monopoly bargaining is ever to be remedied, it will have to be by the High Court itself, and not by any lower federal court. That’s one reason why this writer expects the Goldstein plaintiffs to appeal Engelmayer’s dismissal once other claims in the case that he did not dismiss are resolved.

 

As Howard correctly notes at the conclusion of his short book, “No democratic principle gave legislators and other elected officials the right to surrender governing power to unions.” But it turns out that putting all governing power back in the hands of officials who are accountable to the public has been and will remain an uphill battle.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.