Topic: Law and Civil Liberties

The Practical Impact of Harris v. Quinn: A Major Blow to Organized Labor

As noted in this previous post, the Supreme Court’s decision today in Harris v. Quinn does not remake private-sector labor law but does put an end to one of the labor movement’s greatest hopes for expansion: commandeering dues payments by recipients of state subsidies. While the decision may be narrow—the Court, after all, did not rule that no public workers may be forced to support a labor union—its impact will be anything but that.

The Illinois law at issue here in Harris was at the leading edge of a nationwide movement over the past decade to organize home-based care workers, including medical assistants and even family child-care providers, and thereby to “reinvigorate organized labor.”

Though a recent phenomenon, the use of sham employment relationships to support mandatory union representation has spread rapidly across the nation.  In just the decade since SEIU waged a “massive campaign to pressure [] policymakers” in Los Angeles to authorize union bargaining for homecare workers, home-based care workers “have become the darlings of the labor movement” and “helped to reinvigorate organized labor.”  From around zero a decade ago, now several hundred thousand home workers are covered by collective-bargaining agreements.

Of Course Government Can’t Violate Religious Liberty for No Good Reason

Hobby Lobby is a much simpler and less important case than it’s been made out to be, for reasons the Court clearly spelled out today. Obamacare’s contraceptive mandate had to fall under the Religious Freedom Restoration Act (without even getting to the First Amendment) because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs. Moreover, the fact that a for-profit corporation is asserting the statute’s protections is of no moment because neither the corporate form nor the profit motive undermines RFRA’s solicitude for the rights of humans – including owners, officers, and shareholders. In short, the mandate fell because it was a rights-busting government compulsion that lacked sufficient justification. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their freedom at the office door. 

For more on how the “corporate rights” issue in the case was really a misnomer – because the free exercise of individual humans is at issue regardless of how you style the legalese – see Cato’s amicus brief

Harris v. Quinn: A Win for Workers’ First Amendment Rights

Enough is enough, the Supreme Court ruled today in Harris v. Quinn regarding the power of government to force public employees to associate with a labor union and pay for its speech. Although the Court did not overturn its 1977 precedent, Abood v. Detroit Board of Education, allowing states to make their workers contribute to labor unions, it declined to extend that principle to reach recipients of state subsidies—in this case, home-care workers who receive modest stipends from the state of Illinois’ Medicaid program but are not properly considered “employees” of the state.

The Court is right that Abood is “something of an anomaly” because it sacrifices public workers’ First Amendment rights of speech and association to avoid their “free-riding” on the dues of workers who’ve chosen to join a union, the kind of thing that rarely if ever is sufficient to overcome First Amendment objections. But Abood treated that issue as already decided by prior cases, which the Harris Court recognizes it was not–a point discussed at length in Cato’s amicus brief. Abood was a serious mistake, the Harris Court concludes, because public-sector union speech on “core issues such as wages, pensions, and benefits are important political issues” and cannot be distinguished from other political speech, which is due the First Amendment’s strongest protection. A ruling along those lines would spell the end of compulsory support of public-sector unions, a major source of funds and their clout. 

It was enough, however, in Harris for the Court to decline Illinois’ invitation “to approve a very substantial expansion of Abood’s reach.” Illinois claimed that home-care workers were public employees for one purpose only: collective bargaining. But these workers were not hired or fired by the state, supervised by the state, given benefits by the state, or otherwise treated as state workers. And for that reason, Abood’s purposes, which relate only to actual “public employees,” simply do not apply. Were the law otherwise, the Court observed, “a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood’s reach.”

While Harris is not a watershed opinion that remakes labor law consistent with First Amendment principles, it does put an end to the forced unionization of home-based workers, a practice that has spread to nearly a dozen states and had provided a substantial number of new workers to the labor movement in recent years. Harris also lays the groundwork for a challenge to what it calls “Abood’s questionable foundations.” If recent Roberts Court precedents like Shelby County and Citizens United are any guide, Harris is a warning shot that the Abood regime is not long for this world and that the next case will be the one to vindicate all public workers’ First Amendment rights. 

Court Tosses D.C. Tour Guide Licensing Scheme

Since there isn’t any other legal news this or next week, the U.S. Court of Appeals for the D.C. Circuit today decided to strike down D.C.’s absurd licensing regulations regarding Uber food trucks raw milk guns campaign finance tour guides. Believe it or not, until today District law required people to pay the government $200 and pass a 100-question test on 14 subjects, covering material from no less than eight different publications, before they can give city tours—all for the purpose of “protecting” tourists from misinformation. If you didn’t comply, you faced a fine and 90 days in jail.

I previously wrote about this case when Cato filed a brief last fall, so I’ll just provide some key excerpts from the court opinion (written by Judge Janice Rogers Brown, whom we had the honor to publish in the Cato Supreme Court Review the first year I edited it). Here’s how it starts:

This case is about speech and whether the government’s regulations actually accomplish their intended purpose. Unsurprisingly, the government answers in the affirmative. But when, as occurred here, explaining how the regulations do so renders the government’s counsel literally speechless, we are constrained to disagree.

The court later describes the reason for its disagreement:

The District’s reliance on a Washington Post article dating from 1927 to justify the exam requirement is equally underwhelming. [Citation omitted.] The article merely establishes that, nearly a century ago, the newspaper expressed concern about unscrupulous or fraudulent charitable solicitation and that an unidentified number of persons said self-styled tour guides were overly aggressive in soliciting business. Reliance on decades-old evidence says nothing of the present state of affairs. Current burdens demand contemporary evidence. [Citations of last term’s big voting right case, Shelby County v. Holder, and other cases are omitted.]

Continuing the theme that D.C. failed to justify its speech regulation, the court says:

Even if we indulged the District’s apparently active imagination, the record is equally wanting of evidence the exam regulation actually furthers the District’s interest in preventing the stated harms. Curiously, the District trumpets as a redeeming quality the fact that, once licensed, “[t]our guides may say whatever they wish about any site, or anything else for that matter.” [Citation omitted.] But we are left nonplussed. Exactly how does a tour guide with carte blanche to—Heaven forfend—call the White House the Washington Monument further the District’s interest in ensuring a quality consumer experience? [Footnote omitted.]

The IRS Scandal: Who’s Really Being Gullible?

Some figures on the left have aggressively sought to dismiss the renewed Internal Revenue Service scandal as unserious. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after questioning whether the loss of emails was truly accidental, his GOP colleagues might go on next to quiz the IRS’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said. “I believe it’s an endless conspiracy theory here.”

And yet many Americans who do not care about space aliens do doubt the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might be a good time to recapitulate why.

The IRS grants 501(c)(4) nonprofit status (less favorable than (c)(3) tax status, which affords donors charitable deductibility) to a wide array of “social welfare” organizations–many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates profess to believe, though, that whatever the right set of rules, they should apply alike to all sides in our political life.

By March 2012 the Associated Press was reporting on a flurry of bizarre and seemingly unprecedented IRS demands that some (c)(4) applicants of a right-of-center valence provide extraordinarily burdensome and intrusive documentation of their activities–things like copies of all books and literature distributed to participants, transcripts of leaders’ radio appearances and live speeches, printouts of all Facebook and Twitter output, and so forth, along with donor lists and names of family members. The IRS was also delaying groups’ approval for long periods–in fact, seemingly indefinitely–without explanation or a firm denial that could be appealed to a court. Defenders of the agency leadership subsequently put out a search for left-of-center groups that might have run into similar treatment, and although they did manage to turn up a few tales of bureaucratic red tape and rigmarole, they were unable to come up with anything remotely comparable.

IRS nonprofit chief Lois Lerner at first denied any targeting, then sought to blame rogue employees at the IRS Cincinnati office for it. But emails soon emerged clearly indicating guidance by high-level IRS managers in Washington. Lerner then declined to testify, asserting her Fifth Amendment privilege against admissions tending to expose herself to criminal liability.

Through the ensuing scandal, there was little hard proof that Lerner and other IRS insiders had coordinated the targeting with political actors outside the agency–on Capitol Hill, say, or in party organizations, or the White House–although a number of details on the record, such as frequent White House visits by agency insiders and coordination with outside figures on press messaging, made for suggestive circumstantial evidence. To establish that political operatives or officials outside the agency were aware of targeting at the time, or even perhaps instigated or directed it, would be to blow the scandal wide open, perhaps threatening the careers of well-known public figures. If any email documentation of such coordination is to be found, it would most likely be in the “external” (outside the agency) emails of Lerner and other key players in the targeting effort.

Magna Carta and Constitutional Criminal Procedure

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

ObamaCare’s Exchanges Perform More than a Dozen Functions Besides Issuing Subsidies

One of the issues underlying Halbig v. Sebelius and three similar lawsuits making their way through federal courts is whether Congress intentionally restricted the Patient Protection and Affordable Care Act’s (PPACA) private health-insurance subsidies to individuals who buy coverage through state-established exchanges. If so, that would mean the Internal Revenue Service’s decision to issue subsidies in the 34 states that did not establish exchanges (i.e., that have federally established exchanges) is illegal. For more on the IRS’s attempt to rewrite the PPACA in this fashion, click here.

On Twitter, a skeptic challenges my coauthor Jonathan Adler claim that Congress intended to withhold subsidies in states that did not establish exchanges, arguing “The exchanges serve no purpose at all absent subsidies. Is there no golden rule at all in American jurisprudence?” (Read the entire exchange here.)

In legal jargon, the skeptic argues that a literal interpretation of the statutory language restricting subsidies to those enrolled “through an Exchange established by the State” would be absurd, and the courts should defer to the agency’s reasonable interpretation.

Exchanges, however, are regulatory bureaucracies that perform other functions and serve other purposes besides dispensing subsidies, as the PPACA’s authors and the president acknowledged. In 2009, President Obama said that health insurance exchanges “would allow families and some small businesses the benefit of one-stop-shopping for their health care coverage and enable them to compare price and quality and pick the plan that best suits their needs.” Senate Majority Leader Harry Reid (D-NV) said PPACA “guarantees real choice and competition to keep insurers in check… By creating strong competition, we’ll reduce skyrocketing health care costs.” The PPACA’s Senate drafters wrote, “Insurers that jack up their premiums before the Exchanges begin will be excluded–a powerful incentive to keep premiums affordable.”

In fact, the exchanges are supposed to perform more than a dozen functions besides issuing subsidies. Here are some of the ways PPACA’s health insurance exchanges attempt to serve the goals of “one-stop shopping,” price and quality comparisons, expanding choice and competition, and reducing health insurance premiums, even in the absence of subsidies: