In September 2009, the Mackinac Center Legal Foundation filed its first case, and it created a national stir. The subject was the illegal dues skim from private day care providers who were improperly designated as public employees so that they could be unionized. We used state law to challenge that action but recognized that because similar schemes had occurred in other states, the United States Supreme Court might act. That is, the court might move to re-evaluate whether it was constitutional for public employees to be forced to pay dues or fees to a union to keep their job. Nearly nine years later, the court appears poised to end these forced payments in a case called Janus v. AFSCME. This would have the practical effect of making all public employees right-to-work.
The potential impact of the case is immense. Around 4.8 million public employees are forced to pay dues or fees. In the years since Michigan went right-to-work, the Michigan Education Association has lost 25 percent of its membership. If the Supreme Court were to hold forced dues and fees unconstitutional, public sector unions would see a drop in their fees and dues revenue from $3.1 billion to $2.4 billion. (That calculation assumes a conservative estimate of $660 per employee in dues or fees, as well as a 25 percent drop-off in membership nationwide.)
After the Mackinac Center alerted the nation and the courts to the plight of the day care workers through its state court litigation and surrounding publicity, the National Right to Work Legal Defense Foundation brought federal lawsuits about unionizations of day care and home help workers. One of these cases, Harris v. Quinn, reached the Supreme Court. In the course of their 5-4 holding that those workers could not be charged agency fees, justices discussed whether any public employees could be forced to pay fees, but they did not resolve the issue. Some states have argued that they prefer the convenience of negotiating with a single bargaining representative. Justices examined the contention that if a union cannot force dues or fees payments from everyone in the bargaining unit, it won’t survive — thereby depriving the state of its preference.
This survivability issue arose directly in Friedrichs v. California Teachers Association, which was briefed and argued in 2016. The Mackinac Center filed briefs that looked at government data on unions in right-to-work states to prove that unions in that legal environment would continue to exist. The work drew the attention of libertarian legal scholar Richard Epstein of the University of Chicago. He arranged to have Patrick Wright, director of the Center’s legal foundation, present a paper on the research for the University of Chicago Legal Forum. (The paper will be formally released in that publication soon.) The Friedrichs case ended in a 4-4 tie after Justice Antonin Scalia’s passing.
The Supreme Court later agreed to hear the Janus case. Mark Janus, a child care support specialist in Illinois who claims that being forced to pay an agency fee is unconstitutional, is being represented by National Right to Work Legal Defense Foundation and the Liberty Justice Center. The Mackinac Center has filed two amicus briefs in his support. Continuing research into union survivability, and in anticipation of Janus, the Center engaged in a 50-state survey of state employee payrolls to help analyze union membership trends. The findings were part of Wright’s academic paper and the amicus briefs.
The Mackinac Center Legal Foundation’s leadership and expertise in this field led to it also being asked to write a symposium article on the case for Scotusblog, a leading website on the United States Supreme Court.
Oral argument in Janus will occur on Feb. 26, and the case is likely to be decided in late June. If the Supreme Court were to rule in Janus’ favor, then the hard work of implementing that decision would begin.