Dan Armstrong, Michael Reitz, Patrick Wright and Joe Lehman
Pam Harris loves her son. Josh Harris was born with a rare genetic disorder that necessitates round-the-clock care. For the past 25 years, Pam has performed the service that any selfless parent would, acting as Josh’s primary caregiver. He is able to live at home with his mother through a Medicaid program, rather than being institutionalized.
Pam Harris never set out to be a crusader, but her love for Josh may topple forced unionization of public employees nationwide.
Several years ago, the Service Employees International Union (SEIU) saw the financial assistance going to disabled adults like Josh and concocted a scheme to siphon off a portion of the money. In Illinois, former Gov. Rod Blagojevich (federal prisoner No. 40892-424) led an effort in 2003 to classify home help providers in the Medicaid program as employees of the state. SEIU was designated as the representative of the caregivers and 20,000 independent caregivers were required to pay fees to the union, deducted from the Medicaid payments provided to the disabled adults in their care — $50 million and counting.
Pam Harris and several other caregivers decided to fight. To them, every dollar taken by the union was a dollar not available for their loved ones.
Their case is now pending before the U.S. Supreme Court. The Court is reviewing whether home help providers are actually state employees and whether the state can compel them to support a union because of their participation in a public aid program.
But a larger issue has emerged: Should any public employee be forced to financially support a union? The Supreme Court is now examining whether it should overturn a 1977 decision in Abood v. Detroit Board of Education. In Abood, the court held that public school teachers who objected to the union’s ideological activities were nevertheless required to pay the union, as a condition of employment, a fee equivalent to the cost of union dues.
This question dominated the oral argument at the Supreme Court, which several colleagues and I attended in January. (The Mackinac Center filed an amicus curiae brief in support of Pam Harris and her co-petitioners.) Pam Harris’ attorney argued that the First Amendment should be interpreted to prohibit compulsory union dues. Justice Elena Kagan called it a “radical argument.”
I’d suggest that what’s radical is the concept that a public employee could be fired for refusing to financially support a private entity.
The Abood decision stands on shaky constitutional grounds. In recent opinions, justices have questioned the practice of forced unionization in the public sector. Justice Antonin Scalia labeled it an “extraordinary entitlement” and Justice Samuel Alito wrote that the compulsion is an “anomaly” that “appears to have come about more as a historical accident than through the careful application of First Amendment principles.”
The loathsome scheme to take money from the needy — people like Josh Harris — may be the impetus needed to eradicate that “anomaly.” His mother didn’t intend to make history; she only wanted to do what’s right.