The U.S. Supreme Court is being asked to consider a case that would finally enforce one of its own recent decisions and empower millions of public employees trapped by organizations and government officials openly thumbing their noses at the highest court in the land.
On Thursday, the Freedom Foundation — a nonprofit public policy organization with offices in five states — filed a request for certiorari in Belgau v. Inslee, which accuses Washington Gov. Jay Inslee and American Federation of State, County and Municipal Employees (AFSCME) Council 28 of continuing to deduct dues from the paychecks of state employees who have already exercised their constitutional right to opt out of union participation.
For decades, states could legally require public employees to support a labor union as a condition of employment. The workers had the option of either joining the union and paying dues or declining membership but still paying so-called “agency fees” to compensate the union for the unwanted representation it still provided on their behalf.
One way or another, public employees were forced to hand over a portion of every paycheck or risk losing their job.
In 2018, SCOTUS changed all that by affirming in Janus v. AFSCME that compulsory agency fees are just as unconstitutional as union regular membership and dues.
Not surprisingly, unions have responded to the ruling by acting as though it never happened.
“A constitutional right is a constitutional right 24-7, 365 days a year,” said Aaron Withe, national director of the Freedom Foundation. “With the help of politicians corrupted by dues money, unions have suppressed public employees’ First Amendment rights by restricting their ability to decline union association altogether.
“The justices,” Withe continued, “have a golden opportunity here to reinforce their clearly stated intent in Janus — that public employees can freely choose to pay, or not pay, government unions.”
In no uncertain terms, the majority opinion in Janus, written by Justice Samuel Alito, made exactly that point. It stated:
- “(N)either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay;” and,
- “(B)y agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed.”
Translation: It isn’t enough for unions just to sign an employee to a membership agreement and start siphoning dues. In order for the contract to be valid, the union must first be able to document that the worker was advised of, and knowingly chose to waive, his or her right not to pay money to the union.
Unfortunately, public-sector unions, government officials, and even lower courts have chosen to blatantly ignore the unambiguous language of Janus by refusing to let millions of public employees — whose salaries are paid by every taxpayer in this country — decide whether they want to fund union activity.
“Belgau isn’t some radical new idea,” said James Abernathy, Freedom Foundation legal counsel. “It’s just a corollary to Janus — and it wouldn’t even be necessary if the states and unions had complied with the ruling to begin with.”
Abernathy concluded, “Belgau v. Inslee provides the Supreme Court an opportunity to re-state what already should have been clear to courts like the 9th Circuit: Public employees deserve to know their rights before government employers and unions can begin siphoning their wages.”