What Harris v. Quinn might mean for public-employee unions

June 30

My post on Harris v. Quinn is up on the Reason Foundation’s web site. Here’s an excerpt:

On June 30, 2014, the Supreme Court handed down its decision in Harris v. Quinn. Pamela Harris and several others are “personal assistants” under the Rehabilitation Program or Disabilities Program—two programs, funded by federal Medicaid funds administered by the state of Illinois, that pay for in-home services for people with disabilities. The purpose of the program is to prevent people from having to go into a nursing home if they don’t need do; many personal assistants—including Harris herself—provide services at home for disabled family members.

Under the terms of the program, a personal assistant is formally an “employee” of the disabled person. Disabled persons (defined as “customers” in the law) choose their own assistants, determine the scope of services to be delivered, and can dismiss their assistants if they so desire. The state’s role is to set some basic employment qualifications, mandate an annual performance review by the customer, and mediate conflicts between customers and assistants—and, most importantly, to pay the personal assistant an amount comparable to what the relevant services would cost in an institution.

In light of the state’s minimal control over personal assistants, the Illinois State Labor Relations Board held in 1985 that personal assistants weren’t state employees. But Governor Rod Blagojevich reversed the result by executive order in 2003, and the Illinois legislature codified that soon afterwards. Now personal assistants are considered “public employees”—but “[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act.” SEIU Healthcare Illinois & Indiana was designed as the personal assistants’ exclusive collective bargaining representative, and pursuant to a collective bargaining agreement with Illinois, personal assistants who didn’t join the union still had to pay a “fair share” of the union dues to cover collective-bargaining expenses. (This share is automatically deducted from the Medicare money that personal assistants get from the state.)

Harris and others challenged the fair-share provision under the First Amendment, charging that they shouldn’t be required to pay a fee to a union they don’t support.

The Supreme Court agreed, in an opinion (written by Justice Alito) that, by its terms, only applies to personal assistants. So the bare holding of the opinion is fairly narrow. But the opinion may be more important than its bare holding, to the extent that it portends a possible future overruling of Abood v. Detroit Board of Education, the 1977 decision that allowed compulsory dues to public-employee unions for non-political purposes. To see how the Court got to this result, it’s important to understand a few earlier opinions.

Here’s my conclusion:

How much does this decision harm the prospects of public-employee unions? By its bare holding, not much. All the decision does is limit Abood to the category of full-fledged public employees, and refuse to extend it to the personal assistant context where the state exercises virtually no control. That leaves Abood untouched in its core, where the vast majority of its current beneficiaries live. If the case had come down the other way, public-employee unions might now have a large set of extra compelled contributors—everyone funded by the state to do something or other, even if the state lacks any real control over them. So this is somewhat of a loss for public-employee unions. But it’s not much of a loss of current power. One can even characterize this case as somewhat of a win for public-employee unions, given that much of the briefing was devoted to trying to convince the court to overrule Abood entirely.

The question, then, is what comes next. Justice Kagan, in her dissent, characterized Abood as a “deeply entrenched” decision, “the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation”—and called the bare survival of Abood in this case “cause for satisfaction, though hardly applause.”

But perhaps Abood survived here merely because, in light of the differences between personal employees and personal assistants, there was no need to overrule it outright. The majority’s “potshots” at Abood (as Justice Kagan put it), as in Knox, suggest that, if an appropriate case comes around, with the current composition of the Court, compulsory union dues will become a thing of the past. It’s not clear whether the Court’s generally antipathy toward compelled funding of speech is justified—we’re forced to fund government speech all the time; we call it “taxes”—but given that basic framework, overruling Abood would seem to bring greater consistency to the law.

Read the whole thing here. My full archive of Reason.org material is here. In particular, you can click here for my post about state voucher litigation; here for my policy brief about due process, non-delegation, and antitrust challenges to private regulators; here for my post about the North Carolina Board of Dental Examiners antitrust case that will soon be heard by the Supreme Court; here for my post about the Amtrak non-delegation case that will also soon be heard by the Supreme Court; and here for last Term’s ruling about the antitrust state-action doctrine.

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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